ITLOS: The First Six Years
P. Chandrasekhara Rao
I.
II.
Introduction
Organization
1. A World Court
2. Chambers and Committees
a. Chambers
b. Committees
3. The President
4. The Registrar and the Registry
5. Internal Functioning
III. Competence
IV. "Choice of Procedure" Declarations
V. The Rules
VI. The Resolution
VII. The Guidelines
VIII. The Cases
1. Cases Concerning Prompt Release of Vessels and Crews
2. Cases Concerning Provisional Measures
a. The MN "Saiga" (No.2) Case, Provisional Measures
b. The Southern Bluefin Tuna Cases
aa. Background to the Disputes
bb. Prima facieJurisdiction
cc. Urgency
dd. Provisional Measures
c. The MOX Plant Case
3. The MN "Saiga" (No.2) Case, Judgment
4. The Swordfish Case
5. The "Chaisiri Reefer 2" Case
IX. Extra-Judicial Activities
X. Relations with Others
1. The United Nations
2. Meetings of States Parties
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3. The International Seabed Authority
4. The Host Country
5. The International Court of Justice
6. The World Trade Organization
7. The International Hydrographic Organization
8. The International Maritime Organization
9. Other bodies
XI. Public Relations
XII. Concluding Comments
I. Introduction
The United Nations Convention on the Law of the Sea (hereafter "the
Convention" or "the Law of the Sea Convention") entered into force
on 16 November 1994. The Convention established the International
Tribunal for the Law of the Sea (hereafter "the Tribunal") as one of the
means for the settlement of disputes concerning the interpretation or
application of the Convention.' The first election to elect the judges of
the Tribunal was held on 1 August 1996. The judges so elected met for
the first time on 1 October 1996, to elect the President and the VicePresident of the Tribunal and to deal with other organizational matters.
The inauguration of the Tribunal took place in the City Hall of Hamburg on 18 October 1996, in the presence of the Secretary-General of
the United Nations and other distinguished guests. Six years in the life
of any international organization, let alone an international judicial
body, is too short a period to evaluate whether it is moving in the direction set out for it by its constituent instrument. However, insofar as
the Tribunal is concerned, that period has not been uneventful. This article seeks to assess and place the developments at the Tribunal into perspective.
II. Organization
It is not proposed to deal with the organization of the Tribunal in all its
aspects. However, the following aspects deserve attention.
Article 287 of the Convention.
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1. A World Court
The Tribunal is an international judicial body established for the settlement of disputes and for rendering advisory opinions concerning the
interpretation or application of the Convention. In the scheme of the
Convention, it is one of the means for dispute-settlement; nevertheless,
it has a number of features in terms of competence and other related
matters which distinguish it from the other means. This is fully demonstrated in Annex VI to the Convention, which constitutes the Statute of
the Tribunal (hereafter "the Statute").
The Tribunal is the largest international judicial body at present,
since it is composed of 21 judges, each having a nine-year term. The
question is often asked whether the Tribunal is too unwieldy to be able
to act without unnecessary delay. Without it in any way being implied
that a larger body is necessarily better than a smaller one, it is widely
known that the Tribunal has dealt with cases with the greatest possible
expedition. The Tribunal is fortunate that, in its formative years, almost
all its judges were draftsmen of the Convention they are asked to interpret and apply. It has eschewed doctrinaire approaches in its expositions
of the provisions of the Convention. In accordance with the high judicial traditions, judges of the Tribunal are prohibited from exercising any
political or administrative function.I The Tribunal has itself adopted a
confidential internal document on what constitute incompatible activities and is careful to ensure that the principles embodied therein are adhered to.
The IC] is frequently referred to as "the World Court", primarily
because of its operation on the global plane.I However, the IC] is no
longer the only institution that can be characterized as a world court.
The Tribunal was conceived by the Convention, whose universal character is underlined by the United Nations General Assembly," The
Statute constitutes an integral part of the Convention which means that
tates and other entities may not participate in the Statute independently
of the Convention. Although the Convention is yet to achieve the goal
2
3
4
See article 7 para . 1 of the Statute.
See generally M. Shahabuddeen, "The World Court at the Turn of the
Century," in: A.S. Muller et al. (eds), The International Court ofJustice: Its
Future Role After Fifty Years, 1997, 3 et seq.; G. Abi-Saab, "The International Court as a world court", in: V. Lowe/ M. Fitzmaurice (eds), Fifty
Years of the International Court ofJust ice, 1996, 3 et seq.
See A/RES/56/12 of 28 November 2001.
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of universal participation, it is not seriously disputed that the Convention, together with the Agreement relating to the Implementation of
Part XI of the Convention of 1982, sets out the legal framework within
which all activities in the oceans and seas must be carried out. The Convention and the Statute underline both the international character and
the permanence of the Tribunal.> They further emphasize that the Tribunal is to be a court of justice that applies the Convention and other
rules of international law not incompatible with the Convention.f
As already mentioned the Tribunal consists of 21 independent
members." elected from among persons enjoying the highest reputation
for fairness and integrity and of recognized competence in the field of
the law of the sea. Further, in the Tribunal as a whole the representation
of the principal legal systems of the world and equitable geographical
distribution is assured.f Judges are elected at a meeting of States Parties
to the Convention. The persons elected to the Tribunal are those nominees of States Parties who obtain the largest number of votes and a twothirds majority of the States Parties present and voting, provided that
such majority includes a majority of the States Parries."
The jurisdiction of the Tribunal is not as broad as that of the ICJ;IO it
is confined to matters provided for in the Convention.'! However, un-
S
6
7
8
9
10
II
Part Xv, section 2, read in conjunction with Annex VI to the Convention,
provides for the establishment of the Tribunal as a standing body. The international character of the Tribunal is assured by the provisions of section
1 (arts 2 to 19) of the Statute.
See article 293 para. 1 of the Convention.
Subject to the requirement under the Statute (article 3 para. 2) that there
shall be no fewer than three members from each geographical group as established by the United Nations General Assembly, it is the States Parties
to the Convention which agree upon the actual geographical distribution at
the elections. At the first election, the Meeting of States Parties decided that
the 21 judges were to be elected as follows: (a) 5 judges from the African
Group; (b) 5 judges from the Asian Group; (c) 4 judges from the Latin
American and Caribbean Group; (d) 4 judges from the Western European
and Other States Group; and (e) 3 judges from the Eastern European
Group. At the second election held in 1999 and the third election in 2002 to
elect on each occasion seven members of the Tribunal, the decision reached
by the States Parties at the first election remained unchanged.
Article 2 of the Statute.
See article 4 para. 4 of the Statute.
See Article 36 of the Statute of the IC] .
See article 288 of the Convention and article 21 of the Statute.
Chandrasekhara Rao, ITLOS: The First Six Years
187
like the IC],12 the Tribunal is open to entities other than States.P which
contibutes to the Tribunal's comprehensive character. The Tribunal's
decisions.l" like the decisions of the IC] ,15 are final and are required to
be complied with by all parties to the disputes. Thus, except in relation
to its jurisdiction, which is limited because the Tribunal is intended to
be a specialized judicial forum, in other respects the Tribunal enjoys a
standing comparable to that of the IC].
To keep pace with increasing globalization, international law-makers
have in recent years created, through multilateral treaties or other
means, more than one specialized judicial forum to deal with special
categories of disputes of transnational significance." These forums consist of judges who are specialists in the subject matter of interest to
them. It has been suggested that those specialized courts ought to secure advisory opinions from the IC] in the interests of preserving the
integrity of international law. This view runs counter to what the lawmakers had intended.'? Also it is wrong to assume that the importance
of the IC] will be diminished on account of judicial decentralization.
The growing caseload of that body does not point in that direction.
Rather than calling into question the wisdom of what has been assigned
to each judicial forum, the more fruitful course is to find ways and
means to make the working methods of each such forum responsive to
the needs of the litigants.
12 See Article 34 of the Statute of the IC].
13
14
15
16
17
See article 291 of the Convention and article 20 of the Statute.
See Arts 59 and 60 of the Statute of the ICJ.
See article 296 of the Convention and article 33 of the Statute.
See Judge R. Higgins, "Respecting Sovereign States and Running a Tight
Courtroom," ICLQ 50 (2001),121 et seq.
Disagreeing with the successive Presidents of the ICJ, who at the United
Nations General Assembly have called for the ICJ to provide advisory
opinions to other tribunals on points of international law, Judge Rosalyn
Higgins observed: "This seeks to re-establish the old order of things and
ignores the very reasons that have occasioned the new decentralisation",
see note 16, 122.
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2. Chambers and Committees
a. Chambers
The Statute makes provision for the establishment of the Seabed Disputes Chamber'f and special chambers'? for dealing with particular
categories of disputes or particular disputes. The Seabed Disputes
Chamber, a standing body, was established on 20 February 1997 during
the second session of the Tribunal.P The members of the Chamber are
selected every three years and may be selected for what the Statute calls
a "second term",21 thereby suggesting a consecutive second term and
ineligibility for a third consecutive term. The Rules of the Tribunal
(hereafter "the Rules") provide that the term of office of members selected at triennial elections expires on 30 September every three years
thereafter. 22 During the eighth session, on 4 October 1999, the Tribunal
selected the members of the Chamber.P
As in the Tribunal, so also in the Seabed Disputes Chamber, it is a
requirement of the Statute that the representation of the principal legal
systems of the world and equitable geographical distribution are assured.f The Statute further gives discretionary power to the Assembly
of the International Seabed Authority to adopt recommendations of a
general nature relating to such representation and disrribution.P The
Assembly has not made any recommendations on the subject so far. It
is, however, for the Tribunal to ensure that the requirement of the Statute referred to above is complied with, giving due weight to recommendations, if any, of the Assembly. It is the President who makes proSeearticle 14 of the Statute.
Seearticle 15 of the Statute.
20 The composition of the Chamber was as follows: Judge Akl, President;
Judges Zhao, Marotta Rangel, Bamela Engo, Nelson, Chandrasekhara Rao,
Anderson, Vukas, Warioba, Treves and Ndiaye, members.
21 See article 35 para. 3 of the Statute.
22 Article 23 of the Rules. It further provides that the term of office of members selected at the first selection shall expireon 30 September 1999.
23 The composition of the Chamber is as follows: Judge Treves, President;
Judges Zhao, Marotta Rangel, Yamamoto, Kolodkin, Park, Bamela Engo,
Vukas, Wolfrum, Laing and Marsit, members. At its twelfth session, the
Tribunal selected Judges Caminos and Xu to fill the vacancies created by
the deaths of Judges Zhao and Laing.
24 Seearticle 35 para. 2 of the Statute.
25
Ibid.
18
19
Chandrasekhara Rao, ITLOS: The First Six Years
189
posals to the Tribunal, after undertaking due consultations with the
judges, in the matter of selection of the members of the Chamber. The
Chamber elects its President from among its members.i" According to
the practice hitherto followed, while the President of the Tribunal convenes the meeting of the Chamber for the purposes of electing its president, he does not participate in any meeting of the Chamber. The senior
member of the Chamber sits in the chair to conduct the election of the
President of the Chamber." The Statute empowers the Seabed Disputes
Chamber to form an ad hoc chamber for dealing with a particular dispute, whose composition shall be determined with the approval of the
parties.P There has been no occasion so far to form such a chamber.
Though the Seabed Disputes Chamber has not had any cases to date,
it has met several times, especially during the last three years, to examine the Rules applicable to the Chamber with a view to ensuring that
the Chamber could handle problems of an organizational and procedural nature which might arise if a case, whether of a contentious or advisory nature, were to be submitted to it.
The special chambers of the Tribunal take their inspiration from
similar chambers of the ICj.29 Of these chambers, the Chamber of
Summary Procedure is formed by the Tribunal every year.l? It is composed of the President and Vice-President, acting ex officio, and three
other members of the Tribunal." Two more members of the Tribunal
are also selected as alternates for the purpose of replacing members who
See article 35 para. 4 of the Statute.
At the first meeting of the Seabed Disputes Chamber, held on 20 February
1997, when the Chamber found it difficult to select its President through
voting, the senior member presiding over the meeting invited the President
of the Tribunal to be present in the meeting as an observer. When the vote
was subsequently taken and failed to produce a decision, the senior member and the President invited the candidates contesting the election for informal consultations outside the room where the Chamber was meeting.
This later helped the Chamber in arriving at a decision.
28 See article 36 of the Statute. This chamber is similar to the ad hoc chamber
under article 15 para. 2 of the Statute.
29 See Arts 26, 27 and 29 of the Statute of the ICJ. On the chambers of the
ICJ, see generally R. Ostrihansky, "Chambers of the International Court of
Justice", ICLQ 37 (1988), 30 et seq.; E. Valencia-Ospina, "The Use of
Chambers of the International Court of Justice" in: Lowe/ Fitzmaurice, see
note 3, 503.
30 See article 15 para. 3 of the Statute.
31
See article 28 para. 1 of the Rules.
26
27
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are unable to participate in a particular proceeding.V The members and
alternates of the Chamber are selected by the Tribunal upon the proposal of the President of the Tribunal.P The selection is made as soon as
possible after 1 October in each year. 34
The Chamber of Summary Procedure is also assigned an important
function in respect of provisional measures. If the President of the Tribunal ascertains that, at the date fixed for the hearing on a request for
the prescription of provisional measures, a sufficient number of judges
will not be available to constitute a quorum, the Chamber of Summary
Procedure is required to be convened to carry out the functions of the
Tribunal with respect to the prescription of provisional measures.V
Notwithstanding article 15, para. 4, of the Statute, such provisional
measures may be adopted at the request of any party to the dispute;
they are, however, subject to review and revision by the Tribunal.I"
The Chamber of Summary Procedure has never met, since no case
has been brought before it;37 nor has any contingency arisen in which it
could prescribe provisional measures.
The Rules provide that an application for the release of a vessel or its
crew from detention under article 292 of the Convention is required to
be dealt with by the Chamber of Summary Procedure if the applicant
has so requested in the application, provided that, within five days of
the receipt of notice of the application, the detaining State notifies the
Tribunal that it concurs with the request.l" This provision has been invoked unsuccessfully on two occasions. In the M/V "Saiga" Case (Saint
Vincent and the Grenadines v. Guinea), Prompt Release, the very first
case before the Tribunal. The Application of Saint Vincent and the
Grenadines under article 292 of the Convention included a request for
the submission of the case to the Chamber of Summary Procedure.
Since Guinea did not notify the Tribunal of its concurrence with the re32
33
34
35
36
37
38
Ibid . See also article 15 para. 3 of the Statute.
See article 28 para. 2 of the Rules.
See article 28 para. 3 of the Rules.
See article 25 of the Statute, read in conjunction with article 91 of the Rules.
Ibid.
In the history of the PCIJ and the ICJ, the Chamber of Summary Procedure settled only one dispute - Interpretation of the Treaty of Neuilly - delivering a judgment on the merits in 1924 and a judgment on interpretation
a year later. See M. O. Hudson, The Permanent Court of International Justice 1920-1942. A Treatise, 1943,346; Ostrihansky, see note 29, 32.
See article 112 para. 2 of the Rules.
Chandrasekhara Rao, ITLOS: The First Six Years
191
quest within the time-limit provided for in the Rules, the case was dealt
with by the Tribunal itself.39 Again, on behalf of Panama, an application
under article 292 of the Convention was filed on 3 July 2001 against
Yemen which contained a request that the case be dealt with by the
Chamber of Summary Procedure. The Application was for the release
of the Chaisiri Reefer 2, a fishing vessel flying the flag of Panama, its
cargo and crew. The Application was entered in the List of cases as Case
No.9 and named "Chaisiri Reefer 2" Case. Yemen did not accept Panama's request. Following an agreement between the two parties, the
President of the Tribunal, by Order dated 13 July 2001, directed the
removal of the case from the List of cases.
While the Rules make it clear that the Chamber of Summary Procedure could, with the agreement of the parties, deal with prompt release
cases under article 292 of the Convention, the Statute and Rules do not
specify what other types of dispute could be handled by this Chamber.
The Statute, however, makes it clear that this Chamber is formed "with
a view to the speedy dispatch of business" and that it has to hear and
determine disputes by "summary procedure'v'? expressions which in
the context of the Chamber of Summary Procedure of the ICJ and of
the Permanent Court of International Justice (PCI]) were taken to
mean that the Chamber could deal with "cases of a secondary importance in the sense that they lend themselves to ready solution'"" or
"disputes not requiring particularly intricate and detailed interpretation
of law."42
The Statute confers discretionary powers on the Tribunal to form
special chambers as standing bodies for dealing with "particular categories of disputes", each chamber to consist of three or more elected
members of the Tribunal.P When the Tribunal decides to form a special
chamber, the Rules enable it to determine, among other things, the particular category of disputes for which it is formed, the number of its
members, and the period for which they will serve.
On 14 February 1997, during its second session, the Tribunal
formed two such chambers: the Chamber for Fisheries Disputes and the
39
40
41
42
43
See para. 5 of the judgment of the Tribunal delivered on 4 December 1997
in the M/V "SAIGA" Case (Saint Vincent and the Grenadines v. Guinea),
Prompt Release, ITLOS Reports 1997,16 et seq., (18).
See article 15 para. 3 of the Statute.
See Hudson, see note 37, 346.
See Ostrihansky, see note 29, 32.
See article 15 para. 1 of the Statute.
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Chamber for Marine Environment Disputes, each to consist of seven
members of the Tribunal. The term of office of the members of each
Chamber began on 20 February 1997 and ended on 30 September 1999.
By separate resolutions adopted on 28 April 1997,44 the Chamber for
Fisheries Disputes was declared competent to deal with disputes relating to the interpretation or application of any provision of (a) the Convention concerning the conservation and management of marine living
resources, and (b) any other agreement relating to the conservation and
management of marine living resources which confers jurisdiction on
the Tribunal, and the Chamber for Marine Environment Disputes was
empowered to deal with disputes relating to the interpretation or application of any provision of (a) the Convention concerning the protection
and preservation of the marine environment, (b) special conventions
and agreements relating to the protection and preservation of the marine environment referred to in article 237 of the Convention, and (c)
any agreement relating to the protection and preservation of the marine
environment which confers jurisdiction on the Tribunal. By separate
resolutions adopted on 8 October 1999, the Tribunal constituted these
Chambers again for a three-year period with the same terms of reference." In an application for prompt release of a vessel under article 292
of the Convention, it was proposed that the case be heard by the
Chamber for Fisheries Disputes. The Registry turned this application
down on several grounds, one of which was that this Chamber could
not deal with a "prompt release" case since such cases did not fall
within its terms of reference.
The members of each Chamber are selected by the Tribunal upon
the proposal of the President from among the members of the Tribunal,
having regard to what is referred to in the Rules as "any special knowledge, expertise or previous experience which any of the members may
have in relation to the category of disputes the chamber deals with. "46
While there is no strict rule in this regard, the claims of judges coming
from different geographical regions and representing different legal
systems are also respected as far as possible in relation to the composition of the special chambers formed under article 15, paras 1 and 3, of
the Statute and of the committees and also in the selection of presiding
44
45
46
For the text of the resolutions, see Tribunal's Yearbook 1996-1997, Vol. 1,
Annexes IV and V.
For the text of the resolutions, see Tribunal's Yearbook 1999, Vol. 3, Annexes IV and V.
See article 29 para. 2 of the Rules.
Chandrasekhara Rao, ITLOS: The First Six Years
193
judges. The President, on whose proposals members of chambers are
selected by the Tribunal, carries a special responsibility in this regard.
He also has to take due note of personal preferences of judges . It is not,
however, a requirement of the Statute that, in the selection of the members of special chambers, the representation of the principal legal systems of the world and equitable geographical distribution should be assured.
Each Chamber elects its own President at a meeting convened especially for this purpose by the President of the Tribunal; such a meeting
is presided over by the senior member of the Chamber. These Chambers have yet to be used, despite the fact that the full Tribunal has dealt
with cases in the areas with which they are concerned.
Article 15, para. 2, of the Statute provides for the formation of a special chamber for dealing with "a particular dispute" submitted to it, if
the parties so request; such a request must be made within two months
from the date of the institution of proceedingsY The President of the
Tribunal must then ascertain whether the other party assents."
The Rules provide that, when the parties have agreed to have a special chamber, the President of the Tribunal must ascertain the views of
the parties regarding the composition of the chamber and must report
to the Tribunal accordinglyr'? the Tribunal must also determine, with
the approval of the parties, the members who are to constitute the
chamber.P This enables the Tribunal to act upon the agreement of the
parties while formally preserving its power to constitute the chamber.
This new system of chambers was introduced first within the IC] to
help parties pick and choose from among judges of that court whom
they want to sit in their case. 51
If the special chamber does not have a member of the nationality of
one of the parties, that party may choose a person to participate as a
member of the special chamber, even if the full Tribunal (as distinct
from the special chamber) has on the bench a member of the nationality
of the party, for the provisions of article 17, para. 4, of the Statute apply
47
48
49
50
51
See article 30 para. 1 of the Rules.
Ibid.
See article 30 para. 2 of the Rules.
See article 30 para. 3 of the Rules.
See Article 26 para. 2 of the Statute of the IC], read in conjunction with
Article 17 para. 2 of the Rules of the ICj. See also Abi-Saab, see note 3,9.
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only in respect of standing chambers and not an ad hoc chamber.52 The
only ad hoc chamber formed by the Tribunal so far was in a case between Chile and the European Community; since the European Community had chosen a judge of the Tribunal who is of the nationality of a
Member State of that international organization to participate as a
member of the Chamber, Chile chose a judge ad hoc to participate as a
member of the chamber.P
An ad hoc chamber should be of particular interest to parties who
are considering arbitration. As in arbitration, in respect of an ad hoc
chamber the parties are given substantial freedom to choose the judges
of the Tribunal who are to sit in such a chamber. A judgment given by
any of the special chambers is considered to have been rendered by the
full Tribunal.t" In the ad hoc chamber system, the parties can enjoy all
the benefits of ordinary arbitration, without having to bear the expenses
of the chamber.55 The parties get the benefit of the Rules; they may even
propose modifications to the Tribunal's rules of procedure which a
chamber may apply.56 Even if members of an ad hoc chamber are re-
52
53
54
55
56
See P. Chandrasekhara Rao, "International Tribunal for the Law of the Sea:
An Overview", in: P. Chandrasekhara Raol R. Khan (eds), The International Tribunal for the Law of the Sea: Law and Practice, 2001, 3.
See article 22 para. 3 of the Rules; Order of 20 December 2000 of the Tribunal in the Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean
(Chile/European Community). The composition of the Chamber is as follows: President Chandrasekhara Rao, President; Judges Caminos, Yankov
and Wolfrum and Judge ad hoc Orrego Vicuna, members.
Seearticle 15 para. 5 of the Statute.
By virtue of article 19 of the Statute, the expenses of the Tribunal are borne
by the States Parties and by the International Seabed Authority on such
terms and in such a manner as shall be decided at meetings of the States
Parties. The States Parties take these decisions at their annual meetings,
which are held to consider, among other things, the budget of the Tribunal.
Article 19 further provides that when an entity other than a State Party or
the International Seabed Authority is a party to a case submitted to it, the
Tribunal shall fix the amount which that party is to contribute towards the
expenses of the Tribunal. The Tribunal is engaged in the task of evolving
general criteria which could help in fixing the amount payable by an entity
other than a State Party towards the expenses of the Tribunal when a case
to which it is a party is submitted to the Tribunal.
See article 48 of the Rules. In its Order of 20 December 2000, in the Case
concerning the Conservation and Sustainable Exploitation of Swordfish
Chandrasekhara Rao, ITLOS: The First Six Years
195
placed following the expiration of their terms of office, they continue to
sit in all phases of the case, whatever the stage it has then reached.V a
provision that should prove to be of special interest to potential users of
ad hoc chambers who would not want any change in the composition
of such chambers once they are constituted. Further, the Statute provides that disputes may be "heard and determined" by the special
chambers only "if the parties so request."58
The question is often asked whether the system of special chambers
will prove successful. In the case of the IC], parties are not viewing
them with favour; the ad hoc chambers were used in only four cases
during the period 1982-1987.59 There is no reason to believe that special
chambers would invariably deliver their orders or judgments much
more quickly or that they would entail significantly lower costs for the
parties than the full Tribunal. What is more, parties may even consider
that the judgment of a full Tribunal stands on a higher footing than the
judgment of a chamber, though in the eye of the law they both have the
same force. That said, special chambers may be of interest to parties if,
under certain circumstances, their composition proves attractive to
them. It is perhaps reasonable to assume that, of the special chambers ,
an ad hoc chamber may have greater appeal to the parties. Since the
Convention makes provision for an ad hoc chamber and since such a
chamber would consist of judges of the Tribunal elected by the States
Parties, the character of the chamber "as a court of justice" is by no
means compromised; nor can such a chamber be treated as an arbitral
body.
57
58
59
Stocks in the South-Eastern Pacific Ocean (Chile/European Community),
the Tribunal made modifications to its Rules as proposed by the parties.
See article 30 para. 4 of the Rules. This provision is modelled on Article 17
para. 4 of the Rules of the I'C]. With regard to the position that obtains
when a member of the Tribunal is replaced, see article 5 para. 3 of the Statute.
See article 15 para. 4 of the Statute .
See Valencia-Ospina, see note 29, 508-510. By a joint letter of 11 April
2002, filed on 3 May 2002 in the Registry of the ICJ, Benin and Niger notified the Court of a Special Agreement whereby they had agreed to submit
their boundary dispute to a Chamber to be formed by the Court, pursuant
to Article 26 para. 2 of the Statute of the Court. They had also agreed that
each of them would choose a judge ad hoc. See IC] Press Release 2002/13
of 3 May 2002.
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b. Committees
At its second session, held in February 1997, the Tribunal established ad
hoc working groups to deal with matters relating to the budget, staff
and library and publications. Later, at its third session, held in April
1997, the Tribunal established four standing committees - the Committee on Budget and Finance, the Committee on Rules and Judicial
Practice, the Committee on Staff and Administration and the Committee on Library and Publications - to replace the ad hoc working
groups.s? It decided that the term of office of the members of a committee would be one year, ending on 30 September every year thereafter. 61 At its eighth session, on 4 October 1999, the Tribunal established
a new standing committee - the Committee on Buildings and Electronic Systems.P
Unlike the chambers, the Committees are not entrusted with cases.
They deal with, among other things, the finances of the Tribunal, including budget proposals, administrative matters, the building requirements of the premises of the Tribunal, library facilities, publications, the
website of the Tribunal, and the Rules. 63 Of the committees constituted
by the Tribunal so far, the first two Presidents have presided over the
Committee on Rules and Judicial Practice, a committee whose work has
a close bearing on the judicial work of the Tribunal. There is, however,
no hard-and-fast rule in this regard. The recommendations of the
Committees are placed before the Tribunal and are generally accepted.
In a body of 21 judges, the committee system has helped giving a subject the attention it deserves without encroaching on the authority or
dignity of a larger deliberative forum.
60
61
62
63
See the Tribunal's Yearbook 1996-1997, Vol. 1,80.
An exception was made in the case of members of committees selected in
April 1997; their term ended on 30 September 1998. Though each committee is reconstituted every year, the Tribunal has, in practice, allowed the
members to continue their respective terms for three successive years; minor changes in membership were, however, made following the election of
new members to fill the vacancies in the membership of the Tribunal.
This replaced the Working Group on Buildings and Electronic Systems set
up at the seventh session of the Tribunal on 16 April 1999.
For the terms of reference of the Committees, see SPLOS127, paras 27-40,
and SPLOS/SO, paras 36 and 37.
Chandrasekhara Rao, ITLOS: The First Six Years
197
3. The President
The President and Vice-President are elected by the Tribunal for three
years; they may be re-elected." The election takes place by secret ballot. No nominations are permitted for the office of the President. The
ballot papers contain the names of all judges; the judges are invited to
tick off the name of the judge whom they wish to support as President
of the Tribunal. The support of a majority of the judges of the Tribunal
composing it at the time of the election, is required for a judge to be
elected as President.P If no judge obtains the required support in the
first ballot, the process is repeated until such time as the necessary support is received. The same procedure is followed in respect of the election of the Vice-President.w
The election of the President (and Vice-President) should take place
on 1 October or shortly thereafter of the year in which a triennial election of one third of the judges of the Tribunal occurs.s? Whatever the
date of election, the term of office of the President begins on 1 October
and ends when the new President is elecred.s" The outgoing President,
if he is still a judge on the date of election, conducts the election of the
new President.s? The new President conducts the election of the VicePresident either at the same time or at the following rneeting.??
The conception of the office of the President of the Tribunal in the
Statute, the Rules, the Resolution on the Internal Judicial Practice of the
Tribunal (hereafter "the Resolution") and the decisions of the Tribunal
on the role of the President is fundamentallythe same as that of the office of the President of the ICJ.71 The President occupies a pivotal posi-
64
65
66
67
68
69
70
71
See article 12 para. 1 of the Statute. It is too early to talk about the practice
of the Tribunal in the matter of re-election. The first and second Presidents
of the Tribunal did not seek re-election.
See article 11 para. 2 of the Rules.
See article 11 para . 3 of the Rules.
See article 10 para. 2 of the Rules.
Ibid.
See article 11 para . 1 of the Rules.
See article 11 para . 3 of the Rules. The first President and Vice-President
were elected on 5 October 1996. The current President was elected on 1
October 1999 and the current Vice-President was elected on 4 October
1999.
See, generally on the office of President of the Iq, P. Spender, "The Office
of President of the International Court of Justice", Australian Yearbook of
198
Max Planck UNYB 6 (2002)
tion in relation to the work of the Tribunal and its administration. On
account of this position, he takes precedence over the other members."
The President directs the work of the Tribunal." supervises the administration of the Tribunal/" and pres ides at all meetings of the Tribunal.75 He has a casting vote in the event of an equality of votes by
judges present on questions before them.i" In practice, so far the President has not had to exercise his casting vote . On one occasion, when
there was an equality of votes in indicative voting, the President indicated that he would vote a second time in much the same way as his
first vote; the matter was subsequently taken as having been settled
without proceeding to a formal vote. However, over the last three years,
on each occasion when there was an equality of votes, the voting process was suspended. The President contributed to further elucidation of
the issue, both through formal debate and informal consultation. When
the vote was subsequently taken, the matter was resolved without the
need for the President's casting vote . Of course , if the disagreement
among judges reaches an impasse, the President's casting vote may become unavoidable."
The President convenes the Tribunal at any time in the event of urgency;78 controls the hearing in a caset/? presides over any special
chamber of which he is a memberjs? chairs meetings of a drafting committee set up for a case if he shares the majority opinion as it appears at
72
73
74
75
76
77
78
79
80
International Law 1 (1965), 9 et seq.; Muhammad Zafrulla Khan, "The
Appointment of Arbitrators by the President of the International Court of
Justice", XIV Comunicazioni e Studi: Il Processo Internazionale, Studi in
onore de Gaetano Morello, 1975, 1021; S. Rosenne, "The President of the
International Court of Justice", in: Lowe/ Fitzmaurice, see note 3, 406 et
seq.
See article 4 para. 4 of the Rules.
See article 12 para. 1 of the Rules.
Ibid.
Ibid.
See article 29 para. 2 of the Statute.
For the practice of the PCI] and ICJ in this regard, see Rosenne, see note
71,410-411.
See article 41 para. 6 of the Rules.
See article 26 para. 1 of the Statute.
See article 31 para. 1 of the Rules.
Chandrasekhara Rao, ITLOS: The First Six Years
199
the time of the formation of such committee;" and signs the judgments
and advisory opinions and reads them at public sittings of the Tribunal.82 He ascertains the views of the parties with regard to questions of
procedure in every case submitted to the Tribunal .P
The President represents the Tribunal in its relations with States and
other entities.s" The President and the Registrar represent the Tribunal
at the Meetings of States Parties to the Convention. The President presents at these meetings the annual reports of the Tribunal (giving an account of the activities of the Tribunal covering the period from 1 January to 31 December of the relevant year), the budget proposals and any
other proposals regarding regulations and rules of the Tribunal. He is
also called upon at the meetings to give such other information as States
Parties consider appropriate.P The President represents the Tribunal at
the plenary meetings of the United Nations General Assembly dealing
with the item "Oceans and the law of the sea" and makes a statement on
the activities of the Tribunal. He is invited by the German Federal Gov ernment and the City of Hamburg to all important functions. He is also
invited to meetings and seminars to speak on the activities of the Tribunal. He approves appointments to such posts as the Tribunal determines.f"
The President of the Tribunal exercises certain powers of the Tribunal when the Tribunal is not sitting. The delegated powers of the President include the following: determination of the number and order of
filing of pleadings and the time-limits within which they must be
filed;87 making copies of the pleadings and documents annexed thereto
accessible to the public.'" fixing the date for the opening of the oral
proceedings or postponing the opening or continuance of such pro-
81
82
83
84
85
86
87
88
See article 6 of the Resolution. Except in the MIV "Saiga" Case (Saint Vincent and the Grenadin es v. Guinea), Prompt Release, in all other cases decided so far, the President was the Chairman of the Drafting Committee.
See article 30 para . 4 of the Statute; arts 124, 125, 135 and 137 of the Rules.
See article 45 of the Rules.
See article 12 para . 2 of the Rules.
See rule 37 of the Rules of Procedure for Meetings of States Parties
(SPLOS12/Rev. 3 of 26 July 1995).
See article 35 para . 1 of the Rules .
See article 59 of the Rules. This is without prejudice to any subsequent decision of the Tribunal.
See article 67 paras 2 and 3 of the Rules.
200
Max Planck UNYB 6 (2002)
ceedings.'" fixing the earliest possible date for a hearing over a request
for the prescription of provisional measures.'? fixing the date for a
hearing in respect of an application for the release of vessels and crews
in accordance with article 292 of the Convention;"! fixing time-limits
for the presentation of observations and submissions in regard to a preliminary objection'? or the respondent's request for a determination
concerning preliminary proceedings under article 294 of the Convention;93 making an order regarding the discontinuance of proceedings if
the parties have agreed to such discontinuance.?'
When a request for provisional measures is submitted, pending the
meeting of the Tribunal, the President may call upon the parties to act
in such a way as will enable any order the Tribunal may make on the
request to have its appropriate effects. 95 There has been no occasion to
invoke this power so far. Orders of the Tribunal also authorize the
President to request from each party such reports and information as he
may consider appropriate upon the steps it has taken or proposes to
take in order to ensure prompt compliance with the provisional measures the Tribunal has prescribed.?"
The Rules envisage certain situations in which the functions of the
presidency "shall be exercised" by the Vice-President of the Tribunal or,
failing that, by the Senior Member: (i) vacancy in the presidency, arising
on account of the resignation of the President or of the death of the
See article 69 para. 3 of the Rules.
See article 90 para. 2 of the Rules.
91
See article 112 para. 3 of the Rules.
92 See article 97 para. 3 of the Rules
93 See article 96 para. 5 of the Rules.
94 See article 105 para. 3 of the Rules.
95 See article 90 para. 4 of the Rules. On precedents of the peI] and the ICJ in
this regard, see Spender, see note 71,17-18.
96 See article 95 of the Rules and Orders of the Tribunal in the M/V "Saiga"
(No.2) Case (Saint Vincent and the Grenadines v. Guinea), Provisional
Measures, Order of 11 March 1998 ITLOS Reports 1998, 24 et seq., (40);
Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan),
Provisional Measures, Order of 27 August 1999, para. 90(2); the MOX
Plant Case (Ireland v. United Kingdom) , Provisional Measures, Order of 3
December 2001, para. 89 (2).
89
90
Chandrasekhara Rao, ITLOS: The First Six Years
201
President, and (ii) inability of the President to exercise the functions of
the presidency."
There may also be situations in which the President is precluded
from sitting or presiding in a case.98 In such an event, he shall continue
to exercise the functions of the presidency for all purposes save in respect of that case."?
The President has to take the measures necessary to ensure the continuous exercise of the functions of the presidency at the seat of the Tribunal.P? In the event of his absence, he may, so far as is compatible
with the Statute and the Rules, arrange for those functions to be exercised by the Vice-President of the Tribunal or, failing that, by the Senior
Member.'?' In practice, the President would not make arrangements for
the discharge of his functions on all his absences from the seat of the
Tribunal. Such arrangements are made when the President goes on vacation; he invites the Vice-President to exercise the functions of the
Presidency during his absence. It is understood that the person exercising the functions of the President generally attends to matters which
deserve immediate attention (in consultation with the President, where
possible). There has so far been no occasion when the President 's functions in respect of judicial work have been exercised by any other person.
The draft agenda for all meetings of the Tribunal is prepared with
the approval of the President.P? The President also approves records of
such meetings prepared by the Registrar.
The press releases, yearbooks and other publications of the Tribunal
are prepared and issued by the Registry; they do not involve the responsibility of the Tribunal. Nevertheless, the President is consulted
before they are issued.
97
98
99
100
101
102
See article 13 of the Rules. This inability may arise on account of physical
or mental disabilities . It should be ascertained on objective criteria and not
be lightly inferred.
See article 8 para . 1 of the Statute; article 16 para. 1 of the Rules.
See article 13 para . 2 of the Rules.
See article 13 para . 3 of the Rules .
Ibid .
See article 4 para . 3 of the Instructions for the Registry as adopted by the
Tribunal on 17 March 2000.
202
Max Planck UNYB 6 (2002)
4. The Registrar and the Registry
It is widely known that in more than one international court the relations between the Registrar and the other staff members of the Registry,
especially the Deputy Registrar, as well as the relations between the
Registrar and the President and other judges of the court have not always been free from tension.P! This does not appear to be due to a lack
of rules and regulations defining such relations. The relevant provisions
governing the Registry of the Tribunal may be recalled here .
The Registry of the Tribunallv' is modelled on the Registry of the
ICJ,105 which in turn took its inspiration from the Registry of the
PCIJ.106 It is designed to play an important role in the functioning of
the Tribunal. With respect to the Tribunal, the Registrar is the head of
the Registry.P" The Deputy Registrar is required to assist the Registrar,
act as Registrar in the latter's absence and, in the event of the office of
the Registrar becoming vacant, exercise the functions of the Registrar
until the office has been filled. 108 Further, in dividing the work between
the Registrar and the Deputy Registrar, the Registrar is called upon to
ensure that "both of them are constantly in touch with the work of the
Tribunal and of the Registry. "109 The object underlying this division of
work is twofold: to promote efficiency through decentralization of
work and ensure a smooth take over of functions in the event of the
Registrar's absence or the office of the Registrar becoming vacant.
The Registrar has manifold duties entrusted to him by the Rules, the
Staff Regulations of the Tribunal, the Resolution, the Guidelines con-
103 Report of the Office of Internal Oversight Services on the audit and investigation of the International Criminal Tribunal for Rwanda (Doc. A/511789
of 6 February 1997) and the action taken by the United Nations SecretaryGeneral (UN Press Release SG/SM/6172 of 26 February 1997); Report of
the Joint Inspection Unit entitled "Review of management and administration in the Registry of the International Court of Justice" (Doc. A/55/834
of 13 December 2000) and the comments of the ICJ and those of the
United Nations Secretary-General (Doc. A/55/834/Add.1 of 14 March
2001).
104 Seearticles 32 to 39 of the Rules.
105 SeeArticles 22 to 29 of the Rulesof the ICJ.
106 SeeArticles 14to 23 of the Rulesof the PCIJ.
107 Seearticle 1 para. 2 of the Instructions for the Registry.
108 Seearticle 37 of the Rules.
109 Seearticle30 of the Instructions for the Registry.
Chandrasekhara Rao, ITLOS: The First Six Years
203
cerning the Preparation and Presentation of Cases before the Tribunal
(hereafter "the Guidelines"), the Instructions for the Registry (hereafter
"the Instructions"), the Financial Regulations of the Tribunal, the decisions of the Tribunal and the Rules of Procedure for Meetings of States
Parties to the Convention. The main functions of the Registrar are
specified in article 36 of the Rules. In sum, he is responsible for handling the administrative work and finances of the Tribunal; he should be
present in person or be represented at meetings of the Tribunal and of
the Chambers; he is responsible for preparing records of such meetings;
and he is the regular channel of communications to and from the Tribunal and deals with inquiries concerning the Tribunal and its work. The
staff of the Registry are appointed by the Tribunal on proposals submitted by the Registrar.U? Appointments may be made by the Registrar, with the approval of the President, to posts specified by the Tribunal.!'! Like the judges, the Registrar too enjoys diplomatic privileges,
immunities and facilities.I 12
The Tribunal elects its Registrar and Deputy Registrar by secret
ballot from among candidates nominated by its members. The Registrar
has a rank equivalent to an Assistant Secretary-General of the United
Nations and the Deputy Registrar the rank of a Director (D-2). In the
discharge of his functions, the Registrar is responsible to the Tribunal. l 13 He may be removed from office only if, in the opinion of two thirds of the members, he has either committed "a serious breach of his
duties or become permanently incapacitated from exercising his functions. "114
The President directs "the work and supervise[s] the administration
of the Tribunal."115 This is a normal provision in respect of any court,
national or international. The relevant legal instruments of any court
generally vest in the head of a court the administrative powers to be exercised on behalf of the court and require him to be accountable to it on
110
111
112
113
114
lI S
See article 35 para. 1 of the Rules. See also article IV of the Staff Regulations of the Tribunal.
Ibid.
See the German Ordinance promulgated on 10 October 1996 on the Privileges and Immunities of the Tribunal and arts 13 and 14 of the Agreement
on the Privileges and Immunities of the International Tribunal for the Law
of the Sea.
See article 36 para. 3 of the Rules.
See article 39 para. 2 of the Rules.
See article 12 para . 1 of the Rules; article 1 para. 1 of the Instructions.
204
Max Planck UNYB 6 (2002)
that account. This is done for reasons of convenience and effectiveness.
Accordingly, when the President of the Tribunal exercises any supervisory powers in relation to the administration of the Tribunal, he does so
on behalf of the Tribunal as a whole . The relationship between the
President and Registrar of the Tribunal may be illustrated by comparing
it with the relationship between the political and civilian heads of a
ministry within a national jurisdiction having a parliamentary system of
government. What can the President do in exercising such supervisory
powers? He cannot ask the administration to act in disregard of the applicable legal provisions. Supervisory powers are intended to be used
for securing due compliance with the Statute, the Rules, the Regulations, the decisions and the other legal instruments of the Tribunal and
also for giving directions in areas not covered by such instruments, at
least until such time as the Tribunal has had occasion to deal with them.
What is significant is that, though the Tribunal has entrusted the
President with supervisory responsibility, there is today a greater appreciation than before that the judges cannot avoid playing a management role altogether. Judges have come to playa more active role in the
work of different standing or ad hoc committees, especially those involved with budgetary and administrative matters . It appears that, generally speaking, the authorities of international institutions have yet to
reach the level of supervision of and control over administration accomplished at the national level in well-established democracies.
On 21 October 1996, the Tribunal elected Mr. Gritakumar Chitty of
Sri Lanka as the first Registrar of the Tribunal. On 27 April 2001, he
informed the Tribunal that he would resign from the office of Registrar
with effect from 1 July 2001. Following this announcement, the Tribunal proceeded to elect a new Registrar. Though the Registrar is to be
elected from among candidates nominated by members of the Tribunal,
with the approval of the Tribunal , the President gave notice of the vacancy through various channels, including the public media, so that
members could nominate candidates from (a) the list of persons responding to the notice or (b) any other person whom they knew.
Though this procedure is not envisaged in the Rules, it is certainly not
incompatible with them. Before the new Registrar was elected, the Tribunal deliberated on the Registrar 's term of office (keeping in view,
among other things, the recommendation made by the Joint Inspection
Unit with regard to the term of office of the Registrar of the ICJ116 as
116
The recommendation was that the term of office of the Registrar of the l'C]
be reduced from seven to three years, since it would make it possible to
Chandrasekhara Rao, ITLOS: The First Six Years
205
well as the position that obtains in other international courts) and reduced, with effect from 21 September 2001, the term of office of both
the Registrar and the Deputy Registrar from seven to five years.U? Immediately thereafter, the Tribunal elected Mr. Philippe Gautier from
Belgium, the then Deputy Registrar, as the Registrar for a term of five
years. Following the same procedure as in the case of the election of the
Registrar, the Tribunal elected, on 12 March 2002, Mr. Doo-young Kim
of the Republic of Korea as its Deputy Registrar.
5. Internal Functioning
The internal functioning of the Tribunal is governed by arts 40 to 42 of
the Rules.U" This includes the internal judicial practice of the Tribunal,
which is governed by any resolutions on the subject adopted by the
Tribunal. The only resolution adopted so far on the subject is that entitled "Resolution on the Internal Judicial Practice of the Tribunal." The
articles referred to above and the Resolution cover such matters as the
quorum for meetings of the Tribunal, the Seabed Disputes Chamber
and special chambers; availability of judges and judges ad hoc at meetings; judicial vacations; public holidays; secrecy of the Tribunal's deliberations; the Tribunal's deliberations before, during and after oral proceedings; the Drafting Committee and its deliberations; and voting on
judgments.
117
118
limit the damage that might result for the Court if the choice of incumbent
proved to be an unfortunate one. Though the Court thought that this suggestion was not "without its merit ", it felt that the search for a qualified
candidate would be made even more difficult if the term of office were to
be shortened and that the length of the term of office was justified historically by the need to guarantee the independence of the incumbent (Doc.
A/55/834/Add.1). On the underlying object of similar provisions in the
Statute of the PCI] and the IC], see also M. O . Hudson, see note 37, 303,
and S. Rosenne, The Law and Practice of the International Court, 19201996, Vol. 1, 432, respectively. It is difficult to see how a term of less than
seven years would affect the independence of the incumbent. At present,
the IC] is the only international court whose Registrar has a seven-year
term.
By amending article 32 para. 1 of the Rules.
These articles are modelled on Arts 19 to 21 of the Rules of the IC].
206
MaxPlanck UNYB 6 (2002)
A quorum of 11 elected judges is required to constitute the Tribunal
at all its meetings.!'? A quorum of seven judges selected by the Tribunal
is required to constitute the Seabed Disputes Chamber at all its meetings.120 The quorum for meetings of the Chamber of Summary Procedure is three judges.P' The quorum for meetings of the Chamber for
Fisheries Disputes and of the Chamber for Marine Environment Disputes is five judges. 122 Judges ad hoc are not to be taken into account
for the calculation of the quorum.V'
The Tribunal is a standing court; its judges are requ ired to hold
themselves "permanently available to exercise their functions" and attend all meetings of the Tribunal, unless they are absent on leave during
judicial vacations, if any, or are prevented from attending by illness or
for other serious reasons duly explained to the President.F" The President is required to inform the Tribunal about the reasons that prevented
a judge from attending the Tribunal's meetings.P'' The record of attendance of judges at meetings so far has been generally good . In some
cases, the real difficulties with reference to attendance of a few judges
arose on account of illness; in some cases, judges had other interests
which precluded them from attending a meeting or two . The task of the
President in trying to persuade a judge not to miss a meeting is a delicate one. What is said of an elected judge in relation to his attendance
applies to a judge ad hoc with equal force in the case in which he is participating.V"
The Rules deal with judicial vacations of the Tribunal. They declare
that the Tribunal "shall fix the dates and duration of the judicial vacations and the periods and conditions of leave to be accorded to individual Members, having regard in both cases to the state of the List of cases
and to the requirements of its current work. "127 Though the provision
is drafted in what appears to be mandatory language, it is apparent that
the need to prescribe judicial vacations arises only when, in the opinion
119
120
121
122
123
124
125
126
127
See article 41 para. 1 of the Rules.
Ibid.
See article 28 para. 6 of the Rules.
This is specified in the resolutions forming the chambers. See Tribunal's
Yearbook 1999, Vol. 3, 117-119.
See article 41 para. 3 of the Rules.
See article 41 para. 2 of the Rules.
Ibid.
See article 41 para. of the Rules.
See article 41 para. 4 of the Rules.
Chandrasekhara Rao, ITLOS: The First SixYears
207
of the Tribunal, the requirements of the cases and the work of the Tribunal otherwise so demand. The workload of the Tribunal is still light;
in view of this, judges return to their respective places of residence as
soon as the meetings and sessions of the Tribunal are concluded. Bearing factors such as these in mind, the Tribunal has not yet found it convenient to declare "judicial vacations. " Even if a judicial vacation is declared , in case of urgency the President is empowered to convene the
Tribunal "at any time."128
The deliberations of the Tribunal take place in private and remain
secret.P? However, in respect of its deliberations on "other than judicial
matters," the Tribunal is given discretion to publish or allow publication of any part of them.P? There is thus a strict embargo on judicial
deliberations being made public. The Registry is further enjoined to ensure that the records of the Tribunal's judicial deliberations do not
contain any details of the discussions or the views expressed, provided,
however, that any judge is entitled to require that a statement made by
him be inserted in the records.P! Only the judges and experts appointed in accordance with article 289 of the Convention "take part in
the Tribunal's judicial deliberations."132 The Rules require that the
Registrar, or his Deputy, and any other members of the staff of the
Registry as may be needed are present.P! In practice, the Registrar, his
Deputy and other staff members as may be required by the Registrar
are present at meetings. Other persons may be present by permission of
the 'Iribunal.I-"
The principle of secrecy, which is a characteristic feature of any true
court, whether municipal or international, is designed to subserve the
independence of the judicial mind and violation of this principle could
128 Seearticle 41 para. 6 of the Rules. For examples of cases of urgency, see article 90 para. 2 and article 112 para. 3 of the Rules.
129 See article 42 para. 1 of the Rules.
130 Ibid.
131 See article 42 para. 3 of the Rules. No judge has so far requested that his
statement be inserted in the records.
132 See article 42 para. 2 of the Rules. No expert has been appointed so far in
accordance with article 289.
133 Ibid.
134 Ibid. The Secretary-General of the International Seabed Authority, a cartographer and the authorities in charge of construction of the permanent
premises have been invited on different occasions to be present at meetings
of the Tribunal.
208
Max Planck UNYB 6 (2002)
compromise the integrity of the judicial process.P" Though there is no
express provision to that effect in the Rules, it appears that the Tribunal's power to expunge the portion of an opinion of a judge that
breaches the secrecy clause flows from the mandatory secrecy provision.
III. Competence
Section 2 of the Statute deals with the competence of the Tribunal as
comprising access to the Tribunal (jurisdiction ratione personae), jurisdiction (ratione materiae) and applicable law. Article 20 of the Statute,
on access to the Tribunal, provides in para. 1 that the Tribunal is open
to "States Parties", a term defined in article 1, para. 2, of the Convention. Article 20, para. 2, of the Statute provides that the Tribunal is open
to entities other than States Parties (a) in any case expressly provided
for in Part XI of the Convention or (b) in any case submitted pursuant
to any other agreement conferring jurisdiction on the Tribunal which is
accepted by "all the parties to that case". Entities other than States Parties may include States which are not Parties to the Convention, the entities mentioned in article 305 which have not become Parties to the
Convention, international intergovernmental organizations (in addition
to those referred to in article 305, para. 1 (f) and Annex IX), the International Seabed Authority, State enterprises, and national juridical persons. 136 The declaration that the Tribunal is open to non-State entities
as provided for in Part XI should be understood as referring to access
to the Seabed Disputes Chamber of the Tribunal, as provided for in
section 5 of Part XI, rather than to the full Tribunal. As noted earlier,
the Tribunal is also open to entities other than States Parties in any case
pursuant to "any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case", indicating that even
entities other than States Parties have to accept the agreement in ques-
135
136
See Sir Robert Jennings's decision in relation to an opinion delivered by a
Finnish third party judge on a decision given by the Iran-U.S. Claims Tribunal in case A/28 on 19 December 2000, as set out in "Contemporary
Practice of the United States", A]IL 95 (2001), 895 et seq.; see also ICJ
Yearbook 1973-1974, 128.
See United Nations Convention on the Law of the Sea, 1982: A Commentary, Vol. V, edited by M.H. Nordquist/ S. Rosenne/ L.B. Sohn (hereafter
"Virginia Commentary"), 375.
Chandrasekhara Rao, ITLOS: The First Six Years
209
tion and cannot be forced to be parties to cases without having done so.
The agreement conferring jurisdiction may be one concluded either
before or after the submission of a case; it may open the Tribunal to a
case in which all the parties are entities other than States Parties or some
of which are States Parties and other entities which are not States Parties.
Adverting now to the jurisdiction of the Tribunal ratione materiae,
article 21 of the Statute provides, in its opening part, that it comprises
"all disputes and all applications"137 submitted to it in accordance with
the Convention and all matters specifically provided for in any other
agreement which confers jurisdiction on the Tribunal.P" The disputes
that could be submitted in accordance with the Convention are specified in Part XV of the Convention. The parties may at any time jointly
agree to submit a dispute to the Tribunal. The jurisdiction of the Tribunal becomes compulsory if the parties have accepted it in their "choice
of procedure" declarations under article 287 of the Convention. Unless
the parties otherwise agree, the Tribunal has a compulsory residual jurisdiction in the matter of prompt release of vessels and crews under article 292 of the Convention and of provisional measures under article
290, para. 5 of the Convention - matters that require immediate action.
137
138
The use of the expression "application" is significant. It is also used in article 13 para . 3, and article 23, of the Statute. It appears that the expression is
intended to cover situations specified in such provisions as article 292 para.
2 of the Convention, which provides for its invocation by an "application
for release." The opening part of article 21 parallels article 288 para. 1 of the
Convention.
Examples of such agreements are the following: 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter (1972); Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on High
Seas (1993); Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea of 10 December 1982
Relating to the Conservation and Management of Straddling Fish Stocks
and Highly Migratory Fish Stocks (1995); Agreement for the Conservation
of Fishery Resources in the High Seas of the South-East Pacific (2000);
Convention on the Conservation and Management of Highly Migratory
Fish Stocks in the Western and Central Pacific Ocean (2000); article 31 of
the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (2000); Convention on the Protection of the Underwater Cultural Heritage (2001); article 24 of the Conservation and Management of Fishery Resources in the
South-East Atlantic Ocean (2001).
210
Max Planck UNYB 6 (2002)
The Seabed Disputes Chamber also has compulsory jurisdiction to the
extent and in the manner provided for in Part XI, section 5, of the Convention. If the parties to the dispute so request, a special chamber of the
Tribunal would have jurisdiction to decide disputes between States Parties concerning the interpretation or application of Part XI of the Convention and the Annexes relating thereto.P? Such disputes could also be
decided at the request of any party to the dispute by an ad hoc chamber
of the Seabed Disputes Chamber.V? Article 22 of the Statute further
provides that, if all the parties to a treaty or convention already in force
and concerning the subject-matter covered by the Convention so agree,
any disputes concerning the interpretation of such treaty or convention
may, in accordance with such agreement, be submitted to the Tribunal;141 this points to the need to enter into a supplementary agreement
conferring jurisdiction on the Tribunal. There has been no such agreement so far.
In the event of a dispute as to whether the Tribunal has jurisdiction,
the matter is settled by decision of the Tribunal.W Similarly, in the
event of dispute as to the meaning of its decision, the Tribunal is competent to construe it upon the request of any party.143 When an application is made in respect of a dispute referred to in article 297 of the Convention, the Tribunal has jurisdiction to decide whether the claim constitutes an abuse of legal process or is primafacie unfounded.l'"
The Convention expressly authorizes the Seabed Disputes Chamber
to give advisory opinions at the request of the Assembly or the Council
of the International Seabed Authority on legal questions arising within
the scope of their activities.P? The question arises as to whether the
Tribunal itself could render advisory opinions. Article 21 of the Statute
is not limited to contentious jurisdiction; it extends to advisory jurisdiction as well, for it provides that the Tribunal's jurisdiction includes
"all matters specifically provided for in any other agreement which
139
See article 188 para. l(a) of the Convention.
140 See article 188 para. l(b) and article 288 para. 3 of the Convention.
141 See article 22 of the Statute.
142 See article 288 para. 4 of the Convention and article 58 of the Rules of the
Tribunal.
143 See article 33 para . 3 of the Statute.
144 See article 294 of the Convention.
145 See article 191 of the Convention.
Chandrasekhara Rao, ITLOS: The First Six Years
211
confers jurisdiction on the Tribunal."146 Further to this provision, article 138 of the Rules lays down the procedure to be followed in the exercise of the Tribunal's functions relating to advisory opinions . It provides that the Tribunal may give an advisory opinion on a legal question
"if an international agreement related to the purposes of the Convention" specifically provides for the submission to the Tribunal of a request for such an opinion and that a request for an advisory opinion
shall be transmitted to the Tribunal by whatever body is authorized by
or in accordance with the agreement to make the request to the Tribunal. It does not appear to exhaust the several ways by which advisory
jurisdiction of the Tribunal or even of its special chambers may be attracted by virtue of article 21 of the Statute.
The Convention does not provide, in express terms, for the Tribunal
to give advisory opinions on legal questions arising under the Convention. The question arises as to whether a Meeting of States Part ies could
seek advisory opinions of the Tribunal on legal questions arising under
the Convention. It may be recalled that the Council of the League of
Nations made requests for advisory opinions on behalf of other international agencies and States, though neither the League Covenant expressly authorized the Councilor Assembly of the League to request
such opinions , nor did the constitutions of others expressly authorize
them to ask the League to request advisory opinions .r" On the basis of
this practice, it may be argued that even a "treaty organ" like the Meeting of States Parties might, if it so decides, request advisory opinions of
the Tribunal. How else could it (and through it the Commission on the
Limits of the Continental Shelf set up under Annex II to the Convention) obtain independent advice on legal questions arising within the
scope of their activities under the Convention, especially when they
concern the interpretation or application of the Convention? When the
need arose, the States Parties postponed in 1995 the election of judges
to the Tribunal, clearly deviating from the mandatory provisions of article 4, para. 3 of the Statute.t'" Similarly, the eleventh Meeting of States
Parties made a change in respect of the date of commencement of the
146
147
148
See also S. Rosenne, "Intern ational Tribunal for the Law of the Sea: 199697 Survey" International Journal of Marine and Coastal Law 13 (1998),
487 et seq., (507).
See address to th e Plen. Sess. of the United Nations General Assembly delivered on 26 October 1999 by Judge S.M. Schwebel, the then President of
the ICJ.
See the Tribunal's Yearbook 1996-1997, Vol. 1,6.
212
Max Planck UNYB 6 (2002)
ten-year period for making submissions to the Commission on the
Limits of the Continental Shelf, clearly deviating from the provisions of
article 4 of Annex II to the Convention.It? In the scheme of the Convention and the Statute, there is thus warrant for the Meeting of States
Parties to seek advisory opinions of the Tribunal should the need arise.
IV. "Choice of Procedure" Declarations
Part XV of the Convention deals with settlement of "disputes"; it does
not deal with advisory opinions. Section 1 (arts 279-285) contains general provisions on the subject; section 2 (arts 286-296) deals with compulsory procedures entailing binding decisions; and section 3 (arts 297299) sets out limitations and exceptions to the applicability of section 2.
Article 286 sets out the conditions which need to be satisfied before
the compulsory procedures are invoked. It reads as follows:
Subject to section 3, any dispute concerning the interpretation or
application of this Convention shall, where no settlement has been
reached by recourse to section 1, be submitted at the request of any
party to the dispute to the court or tribunal having jurisdiction under this section.
By virtue of this article, the questions that arise first in relation to the
applicability of a compulsory procedure for the settlement of disputes
relate to section 3. Whether the "limitations" on the applicability of
section 3 set out in article 297 are attracted to the dispute in question?
Whether the disputant State has made a declaration that it does not accept anyone or more of the procedures provided for in section 2 with
respect to one or more of the categories of disputes specified in article
298? Arts 297 and 298 do not, however, stand in the way of the States
concerned arriving at an agreement for submitting their dispute to any
of the compulsory procedures specified in section 2. A further requirement of article 286 is that compulsory procedures can be invoked only
"where no settlement has been reached by recourse to section 1", which
implies, among other things, that parties are required to resort to other
procedures previously agreed upon by them, whether general, regional
or special (procedures which take precedence over those specified in
section 2),150 that parties are obliged to exchange views regarding set-
149 See SPLOS/73, 11-13.
150 See arts 280 to 282 of the Convention.
Chandrasekhara Rao, ITLOS: The First SixYears
213
tlement of the dispute by negotiation or other peaceful means l51 (thus
discouraging immediate resort to section 2) and that a party could invite
the other party first to submit the dispute to conciliarion'V (unless the
other party is not willing to accept conciliation or the parties do not
agree upon the conciliation procedure to be applied). The other procedures previously agreed upon by the parties to fall within section 1
should provide for the settlement of disputes concerning the interpretation or application of the Convention.P'
Article 282 covers, among other things, an agreement to refer a dispute to the IC] represented by acceptance of its jurisdiction by declarations made under the so-called "optional clause", i.e., Article 36, para. 2,
of the Statute of the IC}.154 As of 1 April 2002, 64 States had filed such
declarations, of which 61 are members of the United Nations. How effective are these declarations in relation to law of the sea disputes? First,
about two-thirds of United Nations members, including a number of
important powers, have not accepted the jurisdiction of the IC] under
Article 36, para. 2, of its Statute. Second, even those States that have
made declarations have subjected them to various types of conditions
and reservations, with the result that the requirement of reciprocity laid
down in Article 36, para. 2 of the Statute of the IC] may not be easily
met. For instance, the Australian declaration of 21 March 2002 states
that it does not apply, inter alia, to "any dispute in regard to which the
parties thereto have agreed or shall agree to have recourse to some other
method of peaceful settlement." Reservations of this type are contained
in nearl y half the declarations in force made under the optional clause .
To quote again the Australian declaration, it does not apply to "any
dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation
of any disputed area of or adjacent to any such maritime zone pending
its delimitation." About one-sixth of the declarations have similar reservations concerning important aspects of maritime zones. Declarations
of a number of members of the Commonwealth of Nations preclude
their being applied to any dispute with the Government of another
lSI See article 283 of the Convention.
152 Seearticle 284 of the Convention.
153 See the Order of the Tribunal of 3 December 2001 in the MO X Plant Case
(Ireland v. United Kingdom), Provisional Measures, on the meaningof article 282 of the Convention.
154 Virginia Commentary, see note 136, 26-27.
214
MaxPlanckUNYB 6 (2002)
member of the Commonwealth of Nations. There are other categories
of reservations as well, all of which, arguably to a great extent, preclude
the declarations made under Article 36, para . 2 of the Statute of the IC]
from standing in the way of the compulsory procedures specified in
section 2 of Part XV of the Convention being invoked.
If limitations and exceptions to applicability of section 2 are not involved and if the requirements of section 1 are satisfied, under article
286, any dispute concerning the interpretation or application of the
Convention "shall .. . be submitted at the request of any party to the
dispute to the court or tribunal having jurisdiction" under section 2.
Article 287 specifies which court or tribunal will have jurisdiction under the Convention.
Article 287 deals with "choice of procedure", and, in para. 1 thereof,
it provides that a State is free to choose one or more of the following
four compulsory procedures entailing binding decisions for the settlement of disputes concerning the interpretation or application of the
Convention: (a) the Tribunal; (b) the ICJ; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal
constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. The choice of procedure may be
effected by means of a written declaration, when signing, ratifying or
acceding to the Convention or "at any time thereafter."155 Such declarations do not, however, affect the jurisdiction of the Seabed Disputes
Chamber of the Tribunal as provided for in Part XI, section 5, of the
Convention.156
As of 1 April 2002, of the twenty-nine States that have filed "choice
of procedure" declarations, three have specified the Tribunal as their
only choice.'V ten have placed the Tribunal first in order of preference;158 and four States have accepted the Tribunal with other procedures, with no one procedure enjoying preference over the others.P?
Six States have specified the IC] as their only choice.I'P While giving the
ISS
156
157
158
159
160
This gives states freedom to cancel or vary their declarations from time to
time.
See article 287 para. 2 of the Convention.
Greece, United Republicof Tanzania and Uruguay.
Argentina, Austria, Cape Verde, Chile, Croatia, Germany, Hungary,
Oman, Portugal and Tunisia.
Australia, Belgium, Finland and Italy.
The Netherlands, Nicaragua, Norway, Spain, Sweden and the United
Kingdomof Great Britain and Northern Ireland.
Chandrasekhara Rao, ITLOS: The First SixYears
215
Tribunal as their first choice, seven States have specified the IC] as their
second or third choice.l'" Four States have specified both the Tribunal
and the IC], without indicating any order of preference. 162 Of the States
which specified both the Tribunal and the IC], none indicated that the
IC] has precedence over the Tribunal.
Whereas two States have specified the Annex VII arbitral tribunal as
their only choice,163 one State specified the Annex VII arbitral tribunal
as its third choice (after the Tribunal and the IC]);164 one as its second
choice (after the Tribunalj.P" and one as its first choice (the second being the Annex VIII special arbitral tribunall.l'" Whereas four States
have specified the Annex VIII special arbitral tribunal as their second
choice (the first being the Tribunal in the case of three States and the
Annex VII arbitral tribunal in the case of one State),167 one State gave
the Annex VIII special tribunal as its third choice 168 and one as its
fourth choice.l''?
Article 287, para. 3, provides that a State Party which is a party to a
dispute not covered by a declaration in force is deemed to have accepted
arbitration in accordance with Annex VII. Article 287, para. 4, provides
that if the parties to a dispute have accepted "the same procedure" for
the settlement of the dispute, it may be submitted only to that procedure, unless the parties agree otherwise. Article 287, para. 5, provides
that, if the parties to a dispute have not accepted "the same procedure",
it may be submitted only to arbitration in accordance with Annex VII,
unless the parties agree otherwise.
The question arises as to what is meant by "the same procedure" in
paras 4 and 5 of article 287. First, the "procedure" in this context obviously refers to the means for the settlement of disputes provided for in
para. 1 of article 287. Second, it appears at first sight that the procedure
should be the one chosen by means of a declaration under article 287
and not independently of it. Hence declarations made under Article 36,
para. 2, of the Statute of the Ie] may not be counted when determining
161
162
163
164
165
166
167
168
169
Austria, Cape Verde, Croatia, Germany, Hungary, Oman and Portugal.
Australia, Belgium, Finland and Italy.
Egypt and Slovenia.
Portugal.
Tunisia.
Ukraine.
Argentina, Austria, Chile and Ukraine.
Hungary.
Portugal.
216
Max Planck UNYB 6 (2002)
whether the parties have accepted "the same procedure." Third, since
the consensual bond is the basis of any compulsory jurisdiction, the
question arises as to whether declarations providing for different preferences, i.e., one placing the Tribunal first in order of preference and the
other placing the Tribunal second in the order of preference, can be said
to have accepted the same procedure for the settlement of the dispute. If
both declarations chose the Tribunal, among other procedures, with no
order of preference, one can argue that they have accepted the same
procedure. Neither these nor other related questions have arisen for judicial determination so far.
The vast majority of States Parties to the Convention have not made
any "choice of procedure" declaration. By virtue of paras 3 and 5 of article 287, these States are deemed to have accepted the Annex VII arbitral tribunal. Even in relation to States that have filed declarations, unless such declarations accept the same procedure for the settlement of
disputes, they shall be regarded as having accepted the Annex VII arbitral tribunal. At present, the number of States for which the jurisdiction
of the Annex VII arbitral tribunal is compulsory is no less than one
hundred and fifteen. This state of affairs is perhaps not in line with what
was expected of the Convention, given that the United Nations General
Assembly keeps encouraging States Parties to consider making declarations choosing from the means set out in article 287 of the Convention.
v
The Rules
Necessarily, while drafting the Statute of the Tribunal, the founders of
the Convention looked at the ICl's structure and procedures for inspiration. The Tribunal also modelled its Rules on the IC] Rules, while
departing from the latter, where appropriate, keeping in view the differences between its Statute and that of the IC] in respect of their cornpetences and also juridical writings seeking reforms in procedures for increasing the effectiveness of the ICJ.l70
170 See T. Treves, "The Rules of the International Tribunal for the Law of the
Sea", in: Chandrasekhara Raol Khan, see note 52, 135-159; D.W Bowett et
aI., The International Court of Justice: Process, Practice and Procedure,
1997; R. Jennings, "New Problems at the International Court of Justice",
in: International Law in an Evolving World, Essays in Tribute to Eduardo
Jimene z de Arechaga, 1974, Vol. II; K. Highet, "Problems in the Preparation and Presentation of a Case", in: C. Peckl R.S. Lee (eds), Increasing the
Chandrasekhara Rao, ITLOS: The First SixYears
217
Consistent with the urging of article 49 of the Rules that the proceedings before the Tribunal be conducted "without unnecessary delay
or expense",171 the Tribunal introduced several features in the Rules and
the Resolution which are not present in the corresponding documents
of the IC}. These new features may be seen in respect of, among other
things, the fixing of time-limits for the submission of pleadings.F? filing
of preliminary objections and presentation of submissions by the other
party173 and the fixing of the date for the opening of the oral proceedings. 174 Other new features include the introduction of the initial deliberations stage after the closure of the written proceedings and prior to
the opening of the oral proceedings, to enable judges to exchange views
on the written pleadings and the conduct of the case,175 the procedural
elaboration of the new concept of "preliminary proceedings" set out in
the Convention.V" the reporting obligation of parties as to their compliance with provisional measures "prescribed" by the Tribunal.V?
short time-limits for a hearing and rendering of judgment in proceedings involving prompt release of vessels and crews 178 and the introduction of elaborate rules of procedure concerning proceedings in contentious cases before the Seabed Disputes Chamber.V?
171
172
173
174
175
176
177
178
179
Effectiveness of the International Court of Justice, 1997, 127; M. Shaw,
"The International Court of Justice: A Practical Perspective", ICLQ 46
(1997), 831 et seq.
For the principle that the Tribunal "shall be cost-effective", see also: section
1(2) of the Annex to the Agreement relating to the Implementation of Part
XI of the United Nations Convention on the Law of the Sea; the decision
of the Meeting of States Parties taken in May 1995 that "the principles of
cost-effectiveness would apply to all aspects of the work of the Tribunal"
(SPLOS/4 of 26 July 1995,7); and A/RES/52126 of 26 November 1997.
Seearticle 59 para. 1 of the Rules.
See article 97 paras 1 and 3 of the Rules.
See article 69 para. 1 of the Rules.
See article 68 of the Rules and article 3 of the Resolution.
See article 294. The ICJ has no similar proceedings.
Seearticle 95 of the Rules.
Seearticle 112 of the Rules.
Seearts 115 to 123of the Rules.
218
Max Planck UNYB 6 (2002)
VI. The Resolution
The Resolutionts? begins to operate after the closure of the written proceedings. Though it is primarily designed for cases to be decided on the
merits, it also applies to urgent proceedings with appropriate adaptations. 181 Judges are given a five-week period to prepare a brief note
identifying (a) the principal issues arising from the written pleadings
and (b) points which should be clarified during the oral proceedings.W
It is not obligatory for judges to prepare such notes. Copies of the
notes are circulated to the other judges and are kept confidential. This
arrangement is not applicable to urgent proceedings.
The President then prepares a working paper, on the basis of the
written pleadings and bearing in mind the judges' notes, setting out a
summary of the facts and the principal contentions of the parties, evidence or explanations to be requested from the parties, and issues
which, in his opinion, should be discussed and decided by the Tribunal.183 The preparation of the President's paper in urgent proceedings,
especially in prompt release proceedings, has not been an easy task,
since the President has only a couple of days to do this and not all the
pleadings in both working languages are generally available within that
time frame.
After the circulation of the working paper and before the date fixed
for the opening of the oral proceedings, the Tribunal commences its judicial deliberations with a view to, among other things, exchanging
views concerning the written pleadings and the conduct of the case. 184
These deliberations help in focusing attention on aspects of a case
which need further clarification from the parties. While there is no
hard-and-fast rule in this regard, the judges have generally reserved the
questions to be put to parties until after the completion of the first
round of oral proceedings.l'" after that round, the President invariably
180
181
182
183
184
185
For analysis, see D.H. Anderson, "The Internal Judicial Practice of the International Tribunal for the Law of the Sea", in: Chandrasekhara Raol
Khan, see note 52, 197 et seq.
See article 11 para. 2 of the Resolution.
See article 2 para. 1 of the Resolution. This provision was put to use in the
M/V "Saiga" (No.2) Case.
See article 2 para. 3 of the Resolution.
See article 3 of the Resolution.
In the M/V "Saiga" (No.2) Case (Saint Vincent and the Grenadines v.
Guinea), judgment, and Southern Blue/in Tuna Cases (New Zealand v. ja-
Chandrasekhara Rao, ITLOS: The First Six Years
219
convenes a meeting of the Tribunal to enable judges to exchange views,
especially with regard to possible questions which may be put. 186
Though each judge is given the right to put questions .l'" in the cases
heard so far the judges have authorized the President to indicate, generally through the Registrar,188 the questions on which the Tribunal
wished to ask the parties for explanations either during the oral proceedings or immediately thereafter. Sometimes, the judgments or Orders of the Tribunal refer to questions which "Members of the Tribunal
wished to put to the parties";189 at other times, they refer to points and
issues which "the Tribunal would like the parties specially to address."190 Both formulations, however, mean the same; the questions or
issues are generally agreed to by judges. The same questions are addressed to both parties, even if the answers to one or more questions lie
within the special knowledge of one party. The answers given by each
party in wr iting are invariably sent to the other party.
After the closure of the oral proceedings, the judges are given four
working days in cases on the merits (and one day in urgent proceed ings) in order to examine the verbatim transcripts of the oral arguments
of the parties and to write out their tentative opin ions in the form of
"speaking notes."191 This provision on speaking notes is a permissive
one. Judges do not generally write such notes in urgent proceedings.
In the light of the oral proceedings, the President may circulate to
the judges a revised list of issues. In urgent proceedings, it is only after
the closure of the oral proceedings that the President circulates a list of
issues for the first time. There is no strict rule about how this list should
be prepared; each President has his own approach. Judges are at liberty
186
187
188
189
190
191
pan; Australia v. Japan), Provisional Measures, the questions were put before the commencement of the oral proceedings. This practice has changed
since the "Camouco " Case (Panama v. France), Prompt Release.
See article 4 of the Resolution.
See article 76 para. 3 of the Rules.
There is no strict practice in this regard . In the M/V "Saiga" (No.2) (Saint
Vincent and the Grenadines v. Guinea), Provisional Measures, Order o] 11
March 1998, the President himself gave the questions to the Agents of the
parties at a meeting he held with them on 20 February 1998 (see ITLOS
Reports 1998,24 et seq., (26».
See the "Grand Prince" Case (Belize v. France),Judgment of 20 April 2001,
para. 26.
See the "Monte ConJurco" Case (Seychelles v. France), Judgment of 18 December 2000, para . 22.
See article 5 para . 1 of the Resolution.
MaxPlanck UNYB 6 (2002)
220
to modify the list. In the list, attention is generally drawn to all relevant
issues which need determination, with an indication, where appropriate,
of the page numbers of both written and oral proceedings dealing with
those issues. The issues are drafted in as objective a manner as possible;
they cover such matters as jurisdiction, admissibility, analysis of the
substantive legal provisions relied upon by the parties, the merits of issues arising out of the pleadings , the tenability of the relief sought in the
final submissions of parties, and costs . After the finalization of the list
of issues, each issue is discussed in the order in which it is arranged in
the list. Judges are then invited to give their tentative opinions, with the
reasons on which they are based. The President generally speaks on the
issues after other judges have spoken. At times, he may interrupt an ongoing debate and draw attention to what he considers to be relevant
considerations. The time allotted for initial deliberations after oral proceedings depends upon the type of proceeding before the Tribunal.
While a two-day period is generally given for the consideration of issues in urgent proceedings, a longer period is given in other proceedmgs.
If the case presents complex questions and a majority opinion cannot easily be detected (no such case has arisen so far), the Tribunal may
invite judges to write brief notes, circulate them to all judges and resume its deliberations on the basis of the written notes.l'? In other
cases, the President announces the majority opinion, where necessary
on the basis of indicative voting.l'"
Immediately following the establishment of a majority opinion, the
Tribunal sets up a Drafting Committee of five judges who share the
majority opinion "as it appears then to exist;"194 there is here an indication that the majority opinion may change pending a final vote on the
operative provisions of a judgment. If the President shares the majority
opinion, he becomes a member ex officio of the Drafting Committee
and also proposes to the Tribunal which judges should compose the
Committee.l'" If the President disagrees with the majority opin ion, the
Vice-President takes over the responsibiliry.l'" If he too is ineligible, the
members of the Drafting Committee are selected by the Tribunal di-
192
193
194
195
196
See article 5 para. 7 of the Resolution.
See article 5 para. 6 of the Resolution.
See article 6 para. 1 of the Resolution.
Ibid.
See article 6 para. 2 of the Resolution.
Chandrasekhara Rao, ITLOS: The First Six Years
221
rectly;197 unless the Tribunal or the members of the Drafting Committee decide otherwise, the judge who is senior in precedence among the
members of the Committee acts as its Chairman.!" This happened in
the very first case heard by the Tribunal, and the Committee selected its
own Chairman. In the remaining cases, the President shared the majority opinion and was thus the Chairman of the Drafting Committee set
up in such cases.
While proposing the names of judges for inclusion in the Drafting
Committee, the President takes into account, in a flexible manner, factors such as: the representation of different geographical regions and of
both official languages of the Tribunal; giving the opportunity to serve
on the Committee to as many new judges as possible who did not have
earlier opportunities of serving as members of drafting committees; and
the drafting skills of the members concerned. These factors are not,
however, expressly provided for in the provision of the Resolution
dealing with the establishment of a Drafting Committee.l"?
While the Resolution fixes the composition of the Drafting Committee at five judges,200 in a few cases the Tribunal has selected as many
as six judges to compose the Committee.P! The Resolution stipulates
that the members of the Drafting Committee be selected by the Tribunal by an absolute majority of the judges present;202 in practice it has
not been found necessary to vote in this regard because of the widespread consultations undertaken by the President before making his
proposal. Immediately after its establishment, the Drafting Committee
meets with a view to preparing a first draft of the judgment, normally
within three weeks in a case on the merits. 203
The mandate of the Drafting Committee is to prepare a draft judgment which serves a two-fold objective: to state the majority opinion
and "also attract wider support within the Tribunal."204 The effort of
the Committee to attract wider support for the draft judgment should
197 Ibid.
198 See article 6 para . 3 of the Resolution.
199 See article 6 of the Resolution.
200
201
202
203
204
See article 6 para. 1 of the Resolution.
Under article 11 para. 1 of the Resolution, the Tribunal may decide to vary
the procedures and arrangements set out in arts 1 to 10 of the Resolution in
a particular case for reasons of urgency or if circumstances so justify.
See article 6 para. 1 of the Resolution.
See article 7 para . 1 of the Resolution.
See article 7 para. 2 of the Resolution.
222
Max Planck UNYB 6 (2002)
not be at the expense of the majority opinion as it appears then to exist
but should focus on the manner of drafting or the reasons to be given in
support of majority-supported propositions, with a view to accommodating as many concerns as possible. The Resolution does not authorize
the Committee to prepare a compromise settlement that is at variance
with the opinion of the majority.
Within three weeks of circulation of the first draft, judges may offer
their amendments or comments to the Cornmittee.P'' After a second
draft is prepared by the Committee, the first reading takes place within
the Tribunal as soon as possible and in principle not later than three
months after the closure of the oral proceedings.Ps Judges may propose
amendments to the draft. 207 Those wishing to write dissenting or separate opinions give outlines of their opinions and also make available the
texts of such opinions before the second reading of the draft judgment.208 Such opinions are taken into account by the Drafting Committee while preparing a revised draft judgment, giving an opportunity
to the authors of dissenting and separate opinions to reconsider
whether their points of view are accommodated in the revised draft. 209
Judges of the Tribunal may make further amendments to the revised
draft during its second reading.t'?
In urgent proceedings, a much more simplified procedure is followed. In a prompt release case, the Tribunal is required to deliver the
judgment not later than fourteen days after the closure of the hearing.P!
Generally speaking, the judges are given a day to go through the transcripts of the oral proceedings; two days to discuss the list of issues circulated by the President to arrive at conclusions thereon and to establish the Drafting Committee; and two days for the Committee to prepare and make available to all judges the first draft of the judgment. The
Tribunal has a day to discuss the draft and offer comments on , and
modifications to, the draft judgment for consideration of the Committee. The Committee and the Tribunal then hold short meetings spread
over six more days to prepare and discuss second and third revised draft
20S
206
207
208
209
210
211
See article 7 para. 3 of the Resolution.
See article 8 para. 1 of the Resolution.
See article 8 para . 3 of the Resolution.
See article 8 para. 4 of the Resolution.
See article 8 para. 6 of the Resolution.
See article 8 para . 5 of the Resolution.
See articl e 112 para . 4 of the Rules.
Chandrasekhara Rao, ITLOS: The First Six Years
223
judgments and adopt the judgment. A similar simplified procedure is
followed with regard to proceedings involving provisional measures.
Basically two approaches have been followed for drafting a judgment: (i) all or some members of the Drafting Committee are assigned
different issues for the submission of drafts, which are then brought together for integration into a basic draft; (ii) the President or any other
member is assigned the task of preparing the basic draft. With both approaches, other members of the Committee may submit their own
comments for consideration by the main draftsman. While there is no
rule in this regard, in more recent years, the second approach referred
to above has been followed.
"
The Registry staff play a useful role in the drafting of a judgment.
They prepare the basic draft of the introductory part of the judgment
containing a brief history of the case up until the presentation of the final submissions of the parties; they further verify the factual accuracy
of what is contained in the judgment. Furthermore, at the request of the
draftsman, they present research materials.
After the Tribunal has completed consideration of the final draft of
the judgment, the President takes a vote on each operative provision in
the judgment. 212 Any judge may request a separate vote on any issue
which is separable.i!' There being no scope for abstention, each judge
votes either affirmatively or negatively in person and in inverse order of
seniority.-!"
A judge is also allowed to vote other than in person, by appropriate
means of communication, in exceptional circumstances accepted by the
Tribunal. 215 This is obviously the case where a judge, having fully participated in the deliberations (and thus being qualified to participate in
the final vote), is unable to vote in person for reasons which, in the
opinion of the Tribunal, are beyond his control. In such an event, the
Tribunal may permit him to vote by any other means other than in person. In circumstances accepted by it, the Tribunal allowed two judges
- Judge Mensah in the "Grand Prince" Case and Judge Vukas in the
MOX Plant Case - to vote by facsimile from places other than Ham-
212
213
214
215
See article 9 para. 1 of the Resolution.
Ibid.
Ibid.
See article 9 para. 1 of the Resolution. This provision draws its inspiration
from article 9 (ii) of the Resolution concerning the Internal Judicial Practice
of the ICJ .
224
Max Planck UNYB 6 (2002)
burg; in both cases, the Tribunal found that each judge was present at
the public sittings held in the case concerned-Is and had also participated in the deliberations of the Tribunal up to a point at which it had
reached the substance of its decision in that case.217 Judge Mensah could
not be present at the time when the judgment in the "Grand Prince"
Case was read.
A case may also arise where a judge is absent, because of illness or
other reason duly explained to the President, from some part of the
hearing or the deliberations. In such a case, the judge is permitted to
vote if the Tribunal considers that he has taken a sufficient part in the
hearing and the deliberations to be able to reach a judicial determination of all issues of fact and law material to the decision to be given in
the case.218 Though Judge Kolodkin was absent from a part of the
hearing and also of the deliberations in connection with the M/V
"Saiga" (No.2) Case on the merits, he was allowed to vote on the operative provisions of the judgment. He then had to leave Hamburg before the judgment was delivered. The judgment stated that he was
among the judges "Present".
Article 124 of the Rules draws a distinction between the adoption of
a judgment by the Tribunal and its subsequent reading on a date notified by the Tribunal. Article 125 requires that the judgment should
contain, among other things , "the names of the judges participating in
it." When a judgment sets out at the outset the names of judges "Present", it refers to the judges who participated in it and not the judges
present at the time when the judgment is read.
For implementing the time-limits provided for in the Rules and the
Resolution, judges maintain punishing time-schedules.
VII. The Guidelines
One of the main features of the Rules is their directive that the proceedings before the Tribunal shall be conducted without unnecessary
216
217
218
Judges ' presences and absences at public hearings are recorded in the verbatim records of cases.
The decision of the Tribunal with regard to Judge Mensah was read out at a
public sitting held on 20 April 2001 for the reading of the judgment.
See article 9 para. 2 of the Resolution.
Chandrasekhara Rao, ITLOS: The First Six Years
225
delay or expense.P? For implementing this directive, the Rules enable
the Tribunal to issue, among other things, guidelines consistent therewith concerning any aspect of its proceedings.P? The Tribunal issued
the Guidelines on 28 October 1997. These Guidelines go beyond what
is contained in the corresponding IC] documents.F! they bring to bear
new features with regard to the length, format and presentation of
written and oral proceedings and the use of electronic means of communication.F?
It is widely known that proceedings in international courts are generally lax when compared with the control that domestic courts exercise
over judicial proceedings. The reluctance of international courts to do
anything more in this regard is partly attributed to the respect that is to
be shown to States which appear as litigants before them. Keenly desirous of promoting expeditious settlement of disputes, when drafting the
Guidelines, the Tribunal derived helpful ideas from the writings of
practitioners of the IC] and the rules of national judicial institutions.
The Guidelines are now supplemented by the Registry's Rules for the
Preparation of Typed and Printed Texts issued by the Registry on 27
September 200l.
The Guidelines, as their title indicates, deal with the "preparation
and presentation of cases before the Tribunal." They are spread over 19
paras and divided into three parts, the first part dealing with written
proceedings, the second with oral proceedings and the third with advisory proceedings. It is not proposed to go into a detailed analysis of
these Guidelines.V' There are however, a few points that may be underlined. The Guidelines state that a pleading should be as short as possible 224 and this is generally respected by the parties in cases before the
219
220
221
222
223
224
See article 49 of the Rules.
See article 50 of the Rules.
See the ICI's "Note for the parties concerning printing of pleadings" and
"Rules for the preparation of typed and printed texts".
See P. Chandrasekhara Rao, "The ITLOS and its Guidelin es", in:
Chandrasekhara Rao/ Khan, see note 52,187 et seq.
For such analysis, see ibid.
See para. 2 of the Guidelines.
226
Max Planck UNYB 6 (2002)
Tribunal.F> However, the experience in this regard has been based essentially on urgent proceedings. Parties have also often taken advantage
of the guideline which permits them to send pleadings, documents and
other communications by facsimile or electronic means; the guideline
adds that the date on which the Tribunal receives them through facsimile or electronically will be regarded as the material date provided they
are followed without unreasonable delay by the paper originals
thereof. 226 Deriving inspiration from municipal court systems, the
Guidelines require the Registrar to ensure that a pleading or application
or a declaration satisfies the formal requirements of the Rules and to
return the same for rectification where it does not,227 a requirement that
has served a practical need. 228 The parties have not overstepped the time
allotted by the President, in consultation with them, for the presentation of their oral statements.F? In the M/V "Saiga" (No.2) Case, which
was heard on the merits, the Tribunal held as many as 18 public sittings.
In the Southern Bluefin Tuna Cases involving requests for provisional
measures, public sittings were held on three days. These cases involved
the presentation of a number of maps, charts, tables, graphs and displays on computer monitors. In each of the remaining cases, which
were urgent proceedings, public sittings were confined to two days. On
the question of whether the Tribunal should sit in both the morning
and the afternoon when hearing oral arguments, the relevant guideline
225 The total number of pages of written pleadings submitted
cases before the Tribunal has been as follows'
Case
Pleadings
MN "Saiza" Case (Prompt Release)
15 pages
MN "Saiga" (No.2) Case (Provisional Meas- 46 pages
ures)
MN "Saiga"(No.2) Case
365 pages
Southern Bluefin Tuna Cases (Provisional 71 pages
Measures)
77 pages
"Camouco" Case (Promot Release)
79 pages
"Monte Confurco" Case
"Grand Prince" Case
22 pages
10 pages
"Chaisiri Reefer2" Case
155pages
MOX Plant Case
226
227
228
229
See para. 10 of the Guidelines.
Seepara. 11 of the Guidelines.
See Chandrasekhara Rao, see note 52, 191.
Seepara. 16 of the Guidelines.
by parties in
Annexes
40 pages
429pages
1161 pages
1526 pages
123 pages
1860ages
119pages
36 pages
853 pages
Chandrasekhara Rao, ITLOS: The First Six Years
227
prefers the "long morning" approach, unless the Tribunal otherwise decides.P? In practice, the Tribunal met in the mornings or afternoons or
both in the mornings and afternoons, as the requirements of the case
demanded. Out of 29 days of public sittings to hear the oral arguments
of the parties held so far, the Tribunal met on 18 days both in the
mornings and in the afternoons.
The Guidelines apply to cases on the merits and other cases with
equal facility. Though the record of their observance by parties has been
satisfactory, there is still room for improvement. The Tribunal is keen
to exercise firm control over the conduct of the proceedings in the interests of securing a certain degree of uniformity in the presentation of
pleadings and of expeditious disposal of cases.
VIII. The Cases-"
The Registrar has recorded ten cases in which the documents instituting
proceedings were received in the Registry.P?
1. Cases Concerning Prompt Release of Vessels and Crews
Four cases decided by the Tribunal dealt with applications under article
292 of the Convention on prompt release of vessels and crews .233 The
Convention permits a State Party to detain in situations specified
therein a vessel flying the flag of another State Party. Article 292 applies
when it is alleged that the detaining State has not complied with the
provisions of the Convention for the prompt release of the vessel or its
crew upon the posting of a reasonable bond or other financial security.
230
231
232
233
See para . 17 of the Guidelines.
The Tribunal's Judgments, Orders and other case materials are available on
the Tribunal's website, whose address is: www.itlos.org.
On the Registrar's functions in this regard, see article 36 para. l(b) of the
Rules .
The M/V "Saiga" (Saint Vincent and the Grenadines o. Guinea), Prompt
Release, Judgment of 4 December 1997, ITLOS Reports 1997, 16; the
"Camouco" Case (Panama v. France), Prompt Release, Judgment of 7 February 2000; the "Monte Confurco" Case (Seychelles v. France), Prompt Release, Judgment of 18 December 2000; the "Grand Prince" Case (Belize v.
France), Prompt Release, Judgment of 20 April 2001.
228
MaxPlanckUNYB 6 (2002)
The question arose as to whether this article applies to all cases of detention of vessels or only where the Convention contains specific provisions concerning the prompt release of the vessel or its crew upon the
posting of a reasonable bond or other financial security. There does not
appear to be any disagreement with the view that article 292 may be invoked in cases of non-compliance with the provisions of article 73.
para. 2, article 220. paras 6 and 7 or article 226, para. 1(c).234 However,
in the only case where the Tribunal has faced this question, it did not
find it necessary to go into the matter of whether article 292 could be
linked to provisions other than arts 73, 220 and 226 (the so-called nonrestrictive interpretation of article 292) since, on the facts of the case, it
found that the allegation fell within article 73 of the Convention.P'' Article 73, para. 1, states that the coastal State may, in the exercise of its
sovereign rights over the living resources of its exclusive economic zone
(EE2), take such measures, including boarding, inspection, arrest and
judicial proceedings, as may be necessary to ensure compliance with the
laws and regulations adopted by it in conformity with the Convention.
The question arose as to whether article 292 could be invoked on the
basis of an "allegation" that is contrived to bring the case within the
ambit of that article. The answer is obviously in the negative, for any
other interpretation would frustrate the object of article 292. While
dealing with this question, the Tribunal stated that according to article
113 of its Rules "the Tribunal shall in its judgment determine in each
case in accordance with article 292 of the Convention whether or not
the allegation made by the applicant ... is well-founded."236 When can it
be stated that the allegation is well-founded? The Judgment in the MIV
Saiga Case relied upon an approach based on assessing "whether the
allegations made are arguable or are of a sufficiently plaus ible character
in the sense that the Tribunal may rely upon them for the present purposes;"237 nine Judges dissented from this approach. They argued that
article 292 refers to "the decision of the court or tribunal," that admittedly proceedings under that article are not preliminary or incidental
but conclude, in accordance with the Rules of the Tribunal, with a
234 See also the Judgment of the Tribunal of 4 December 1997 in the M/V
"Saiga" Case, Prompt Release, para. 52. In the samecase, see the Dissenting
Opinion of Judges Park, Nelson, ChandrasekharaRao, Vukas and Ndiaye,
paras 23-25.
235 Judgment of 4 December1997, para. 73.
236 Emphasis added.
237 Judgment of 4 December1997, para. 51.
Chandrasekhara Rao, ITLOS: The First Six Years
229
judgment, and that, consequently, the burden is on the Applicant to establish that there is a direct or genuine connection between the allegation and the actions of the coastal State in the application of article 73.
There is no doubt that the Tribunal will have opportunities in the future
to revisit the approach concerning the standard of proof. Once an allegation is made, the detaining State has 10 days from the date of detention to arrange for the release of the vessel or its crew or to agree with
the flag State on any court or tribunal to which the question of release
from detention may be submitted. If the l Ovday period is allowed to
expire without any such agreement being reached, the question of release may be submitted (a) to any court or tribunal accepted by the detaining State under article 287 or (b) to the Tribunal, unless the parties
otherwise agree. The applications made so far under article 292 have
been made to the Tribunal and to no other court or tribunal.
Which entity is competent to make an application for release under
article 292? It is obvious from this article that it is the flag State of the
vessel that is given the locus standi to make such an application. Article
292, para. 2 of the Convention speaks in terms of the application being
made "only by or on behalf of the flag State of the vessel." Any other
entity may make an application only on behalf of the flag State of the
vessel. The initial burden of establishing that the Applicant is the flag
State is on the Applicant itself.238 In the "Grand Prince" Case, the Tribunal clearly specified that the Applicant should be the flag State "when
the Application was made. "239 This language clearly points to one flag
State, namely the flag State of the vessel at the time of filing of the application . In the scheme of article 292, paras 1 and 2, it appears that such
flag State would necessarily be the flag State making the allegation under article 292, para. 1. Even if the vessel were to change its registration
after the allegation was made, the new flag State would still have to
make the allegation, for there is no succession from the old flag State to
the new flag State in this respect. There is thus a necessary link between
238
239
Judgment of the Tribunal of 20 April 2001 in the "Grand Prince" Case,
Prompt Release, para. 67.
Ibid. In the "Camouco" Case (judgment, para. 46) and in the "Monte
Confurco" Case (judgment, para. 58), the Tribunal observed that the Applicants were the flag States of the vessels in question "both at the time of
the incident in question and now" before it found that it had jurisdiction to
entertain the Applications. As pointed out by Judge Treves in his Separate
Opinion in the "Grand Prince" Case, these were statements of fact which
cannot be read as expressions of the position of the Tribunal on the legal
question of the relevant time.
230
MaxPlanckUNYB 6 (2002)
paras 1 and 2 of article 292. In any event, what interest would a State
which is not a flag State at the time when the application is made have
in securing the prompt release of a vessel or its crew, since that is the
only issue that a court or tribunal can deal with in proceedings under
article 292.240
The Tribunal would have no jurisdiction to hear an application under article 292 if the vessel had no right to fly the flag of the Applicant
at the relevant time. The insistence of article 292 on the need for the
Applicant to be the flag State is on account of article 91 of the Convention, by virtue of which, among other things, ships have the nationality
of the State whose flag they are entitled to fly and every State is required to issue to ships to which it has granted the right to fly its flag
documents to that effect. On the international plane, therefore, there
must be sufficient evidence to establish that the vessel has the right to
fly the flag of the State concerned before a court or tribunal declares
that it has jurisdiction to entertain the case. The Tribunal possesses the
"right to deal with all aspects of the question of jurisdiction, whether or
not they have been expressly raised by the parties."241 Consequently,
even where the parties have not called into question the status of the
Applicant as the flag State of the vessel, the Tribunal will on its own examine the question, if the documents placed before it give rise to "reasonable doubt as to the status of the vessel when the Application was
made."242 There is here a clear warning that, even where a vessel's nationality is not contested by the Respondent, the Applicant is welladvised to place on record clear evidence of such nationality.
Article 292 does not prescribe a time-limit within which, after the
expiry of the 10-day period referred to therein, an application may be
made thereunder.P? Since the whole focus of article 292 is on "prompt
release" and since this article requires that the application be dealt with
"without delay," there is an expectation here that the flag State would
pursue its article 292 remedy without undue delay. At any rate, not
doing so would harm only the interest of the flag State. However, it re-
240 See the Dissenting Opinion of Judges Caminos, Marotta Rangel, Yankov,
Yamamoto, Akl, Vukas, Marsit, Eiriksson and Jesus in the "Grand Prince"
Case, in which they questioned the wisdom of the majority approach in
this regard (para. 15).
241 Seethe Judgment in the "Grand Prince" Case, para. 79.
242 Ibid., para. 76.
243 Seethe "Camouco" Case, Judgment, para. 54. See, however, the Dissenting
Opinion of Judge Vukas in the samecase.
Chandrasekhara Rao, ITLOS: The First Six Years
231
mains to be seen whether the Tribunal would view with favour unreasonable delay or negligence in pursuing the remedy under article 292
after the cause of action has arisen.
What could the application deal with? It can deal "only with the
question of release, without prejudice to the merits of any case before
the appropriate domestic forum against the vessel, its owner or its
crew. "244 That the application can deal only with the question of release
is also made clear in the heading of article 292 and in all of its four paragraphs; this limited scope of the application by implication renders
matters not connected with release inadmissible in prompt release proceedings.P" The release may be sought from any form of "detention. "246 Generally speaking, that expression refers to the act or fact of
holding a person in custody by reason of a legal proceeding or as the result of a court proceeding.s" to be meaningful, it should cover any restriction on freedom to leave the territory of the detaining State. If in
substance the elements of "detention" are satisfied, it matters not for
the Tribunal whether the laws of the detaining State describe the then
prevailing situation as "detention" or not. 248
The question arose as to whether local remedies under article 295
should be exhausted before proceedings under article 292 are instituted.
As noted earlier, article 292 permits the making of an application within
a short period from the date of detention. It could not have been framed
on the assumption that local remedies could be exhausted in such a
short period. Accordingly, it is illogical to subject article 292 to the local
remedies rule. 249
Article 292 cannot be read in isolation from other relevant articles
such as article 73, para. 2 of which provides that "[a]rrested vessels and
their crews shall be promptly released upon the posting of reasonable
244
245
246
247
248
249
See article 292 para. 3 of the Convention.
See the "Camouco" Case, Judgment, paras 59-60; the "Monte Confurco"
Case, Judgment, paras 61-63.
See article 292 para. 1 of the Convention.
See Stroud's Judicial Dictionary of Words and Phrases, Sixth Edition, 662.
In the "Camouco" Case, the fact that the Master of the vessel was at the
time under court supervision, that his passport had been taken away from
him by the French authorities and that, consequently, he was not in a position to leave Reunion, constituted adequate basis for the Tribunal to treat
the Master as being under detention and to order his release in accordance
with article 292 para. 1.
See the "Camouco" Case, Judgment, paras 57-58.
232
Max Planck UNYB 6 (2002)
bond or other security". Irrespective of which affected person or entity
activates this provision in the appropriate domestic forum, the Convention expects that, once "reasonable bond or other security" is
posted, the detaining State should promptly release the arrested vessel
and its crew. It does not give a free hand to the detaining State in the
matter of fixing the bond or other security; the bond or other security is
required to be "reasonable", which, being a requirement of the Convention, has an international setting in the sense that, if the reasonableness of the bond or other security is contested, the issue must be decided not by either of the parties, but by an impartial authority.P?
Hence, the need for article 292. States Parties are under an obligation to
ensure that their laws and regulations relative to article 73, para. 2, provide for a standard of reasonableness enshrined in the Convention.
The posting of a bond or other security is not necessarily a condition precedent to filing an application under article 292. As pointed out
by the Tribunal:
There may be an infringement of article 73, paragraph 2, of the
Convention even when no bond has been posted. The requirement
of promptness has a value in itself and may prevail when the posting
of the bond has not been possible, has been rejected or is not provided for in the coastal State's laws or when it is alleged that the required bond is unreasonable.P!
The question of release is not dependent on the question of whether the
detention is legal, for that pertains to the merits of the case. The prohibition on the application being the basis for going into the merits of the
case does not mean that there is a bar against a court or tribunal examining the facts and circumstances of the case to the extent necessary for
a proper appreciation of the allegation referred to in article 292, para .
1;252 the domestic forums are not, however, bound by any findings of
fact or law that a tribunal or court may have made in order to reach its
conclusions.P''
The question had arisen in the "Grand Prince" Case as to whether
an application under article 292 would lie after the competent domestic
250
251
252
253
See also the Separate Opinion of Judge Nelson in the "Camouco" Case on
how to determine what is reasonable, relying upon the North Atlantic
Coast Fisheries Case, Great Britain v. United States, Award of 7 December
1910, Reports oj International Arbitral Awards, Vol. XI, 189.
See the M/V "Saiga" Case, Judgment, para. 77.
See the "Monte Confurco" Case,Judgment, para. 74.
See the M/V "Saiga" Case, Judgment, para. 49.
Chandrasekhara Rao, ITLOS: The First Six Years
233
forum had delivered its judgment on the merits ordering the confiscation of the vessel; it may not make any difference to the answer even if
the judgment did not order confiscation but imposed a monetary penalty. The Tribunal was not called upon to decide this question, since it
determined the case on the ground that the evidence before it failed to
establish that the Applicant was the flag State of the vessel when the application was made. But the question itself is important for more than
one reason. It was argued on behalf of the Applicant in the "Grand
Prince" Case that the release of the vessel by virtue of article 73, para. 2,
read in conjunction with article 292, is a remedy available notwithstanding the judgment of a competent municipal court on the merits of
the case under article 292 para. 3.
Article 73, para. 2, deals with the case of a vessel and its crew in detention following arrest. If a vessel is confiscated or otherwise finally
dealt with pursuant to a judgment of a competent domestic forum, is it
still possible to contend that the vessel and its crew are still in detention? Is it open to the Tribunal in article 292 proceedings to sustain an
argument that a judgment on the merits by a domestic forum, either
after another local court has fixed a bond for release of the vessel or
even before a court has had the opportunity to fix a bond, is in violation
of the obligation under article 73, para. 2, of the Convention? These and
related questions do not admit of an easy reply.254 The Tribunal has not
had occasion to consider whether it would be appropriate to hold back
its judgment in the face of clear information that the competent domestic forum is scheduled to deliver its judgment on the merits before the
date set for delivery of the Tribunal's judgment or even immediately
thereafter. It is important to bear in mind that the article 292 remedy is
exceptional in character, for it was crafted in derogation of the general
principle that the detaining State's domestic forums are competent to
deal with violations of its laws and regulations.
The application under article 292 is admissible when the allegation
made therein is well-founded, which brings one to the question of
whether the bond or other financial security imposed by the domestic
forum in the detaining State is reasonable for the purposes of prompt
release proceedings. This has not been an easy matter for the Tribunal
to determine, especially when the domestic forums have not given a full
254 For an examination of the issues from different standpoints, see the Separate Opinions of Judges Anderson, Laing and Cot in the "Grand Prince"
Case. See also B.H. Oxman/ V.P. Bantz, "The Grand Prince", A]IL 96
(2002),219 et seq.
234
Max PlanckUNYB 6 (2002)
account of the considerations or the evidence on which they based
themselves while fixing the amount of the bond, although they have on
occasion declared that the bond is intended to secure the appearance of
the master of the arrested vessel, the payment of damage caused by the
violations and of sums due in rest itution, and the payment of fines. 255
When determining under article 292 whether the assessment made
by the detaining State in fixing the bond is reasonable, the Tribunal does
not act as an appellate forum against a decision of a national court;256 its
determination is required to be based on the Convention and other
rules of international law not incompatible with the Convention.P? It is
the balance of interests, i.e., the interests of the coastal State and of the
flag State, emerging from arts 73 and 292 that provides the guiding criterion for the court or tribunal under article 292 in an assessment of the
reasonableness of the bond or other financial security.P" The Tribunal
defined the criterion of reasonableness as follows:
In the view of the Tribunal, the criterion of reasonableness encompasses the amount, the nature and the form of the bond or financial
security. The overall balance of the amount, form and nature of the
bond or financial security must be reasonable.P?
Without intending to lay down rigid rules as to the exact weight to be
attached to each factor, the Tribunal specified the factors relevant to an
assessment of the reasonableness of bonds or other financial security as
follows:
The Tribunal considers that a number of factors are relevant in an
assessment of the reasonableness of bonds or other financial security. They include the gravity of the alleged offences, the penalties
imposed or imposable under the laws of the detaining State, the
value of the detained vessel and of the cargo seized, the amount of
the bond imposed by the detaining State and its form.26o
The Tribunal examines the application of the various factors on the facts
of each case, based on the submissions of the parties, and outlines
clearly the extent to which it accepts these submissions in relation to
255
256
257
258
259
260
See, for instance, the "Monte Conferee" Case,Judgment, para. 39.
Ibid., para. 72.
Seearticle 293 of the Convention.
Seethe" Monte Confurco" Case, Judgment, paras 69-80.
Seethe M/V "Saiga" Case, Judgment, para. 82.
See the "Camouco " Case, Judgment, para. 67; the "Monte Conjureo" Case,
Judgment, para. 76.
Chandrasekhara Rao, ITLOS: The First Six Years
235
each factor before going on to determine whether the bond imposed by
a domestic court is reasonable.P! And if it comes to the conclusion that
the bond is unreasonable, it undertakes the task of determining the
amount, nature and form of the bond or other financial security to be
posted for the release of the vessel or the crew, as laid down in article
114, para. 2, of the Rules. The weight given to each factor (including the
amounts mentioned by the parties with regard to the value of the vessel,
the value of the fish and of the fishing gear seized, etc.) is spelt out by
the Tribunal in its Judgment. The overall amount of the bond or other
security determined by the Tribunal flows logically from this process; it
is very far from being an exercise of discretion.
The Tribunal's task in this regard is unenviable, for it is generally
faced with mostly unsubstantiated claims of the parties. Domestic forums appear to base the amount of the bond on claims made by the administrative authorities of the detaining State. In doing so, they do not
appear to take into account what the Tribunal called "the balance of interests emerging from articles 73 and 292 of the Convention" as providing the guiding criterion for fixing a "reasonable bond or security"
referred to in article 73, para. 2 of the Convention. Where no hard evidence is produced for arriving at a conclusion on a scientific basis,
which is generally the case, the Tribunal will make use of such material
as is placed before it and of inferences that may be drawn from it to accept or not accept the submissions of the parties or the assumptions
made by a domestic court while fixing the amount of the bond; the Tribunal does not thereby get itself involved in the merits of a case or engage in criticism of a domestic forum. The Tribunal also prefers the
bond to be in the form of a bank guarantee; it has not favoured rulings
of domestic forums that the bond be paid in cash, by certified cheque or
banker's draft. In view of the large sums involved, a bank guarantee is
easy to provide and does not prejudice the position of either side.262
Article 292 does not perhaps offer a welcome prospect for coastal
States. From their perspective, the Tribunal should take note of the fact
that unlawful fishing is on the rise, that vessels engaged in unlawful
fishing take advantage of the difficulties encountered by a coastal State
in policing the exclusive economic zone, that unlawful, unregulated
fishing constitutes a threat to future resources and that orders of domestic forums fixing bonds or other financial security should not be
interfered with by the Tribunal. As noted earlier, in article 292 pro261
262
See, for instance, the "Monte Co nfu rca" Case, Judgment, paras 77-91.
See the "Monte Conjurco " Case, Judgment, paras 93-95 .
236
Max Planck UNYB 6 (2002)
ceedings the Tribunal is not concerned with the merits of the case; it is
under a duty to see that a coastal State keeps its part of the bargain negotiated at the Third United Nations Conference on the Law of the Sea
and reflected in article 73, para. 2, and article 292.
The operative provisions of the Judgments in prompt release proceedings have not always been expressed in the same terms. In the MIV
"Saiga" Case and the "Camoueo" Case the operative provisions gave
findings on the Tribunal's jurisdiction and the admissibility of the Application and then proceeded to deal with release and consequential
matters . It was thought then that the question of admissibility covered
within its scope all requirements set out in article 292 of the Convention other than the question of jurisdiction.w' The body of the Judgments in both cases, however, contained a clear finding that the allegations made against the Respondent were "well founded for the purposes
of these proceedings."264 In the "Monte Confurco" Case, the operative
provisions drew a distinction between questions of jurisdiction, admissibility and merits, and thus aligned themselves with the actual findings
in the body of the Judgment. The question of whether the Application
related to an allegation of non-compliance with article 73, para. 2, of the
Convention was answered in terms of the admissibility of the Application. And the question as to whether the allegation was well-founded
was considered to appertain to the merits of the Application. This new
arrangement also appears to be in consonance with the requirements of
article 113 of the Rules.
2. Cases Concerning Provisional Measures
The Tribunal has prescribed provisional measures in four cases, one under article 290, para. 1 of the Convention and the other three under article 290, para. 5 of the Convention. The MIV "Saiga" (No.2) Case,
Provisional Measures, was not registered as a separate case, being an incidental proceeding under article 290, para. 1 of the Convention; it
formed part of the MIV "Saiga" (No.2) Case on the merits.
263 See the M/V "Saiga" Case,Judgment, para. 46.
264 See the "Camouco" Case, Judgment, para. 72; the M/V "Saiga" Case,
Judgment, para. 73.
Chandrasekhara Rao, ITLOS: The First SixYears
237
a. The M/V "Saiga" (No.2) Case, Provisional Measures
The M/V "Saiga" Case was dealt with by the Tribunal in two phases,
provisional measures and merits. Guinea did not immediately comply
with the Tribunal's Judgment of 4 December 1997 in the matter of
prompt release of the MN Saiga and its crew. On 13 January 1998,
Saint Vincent and the Grenadines filed with the Tribunal a Request for
the prescription of provisional measures in accordance with article 290,
para. 5 of the Convention. Later, by exchange of letters of 20 February
1998, Saint Vincent and the Grenadines and Guinea agreed to transfer
to the Tribunal the arbitration proceedings instituted by Saint Vincent
and the Grenadines by notification of 22 December 1997. On the same
date , the Tribunal stated that the Notification of 22 December 1997
"shall be deemed to have been duly submitted to the Tribunal on that
date" and that the Request for the prescription of provisional measures,
the Response, Reply, Rejoinder, all communications and other documentation relating to the Request for the prescription of provisional
measures, were to be considered as having been duly submitted to the
Tribunal under article 290, para. 1 of the Convention and article 89,
para. 1 of the Rules. In the List of cases, the case was recorded as the
M/V "Saiga" (No.2) Case. Public sittings were held on 23 and 24 February 1998.
The Tribunal gave its Order on provisional measures on 11 March
1998 under article 290, para. 1 of the Convention.w> This is the only
case so far in which the Tribunal has prescribed provisional measures in
incidental proceedings under article 290, para. 1 of the Convention. The
Order of the Tribunal is composed basically in the same style as that
used by the IC]; in fact, the Tribunal has followed this style in its Orders prescribing provisional measures even under article 290, para. 5 of
the Convention. Whereas the ICJ introduces the recitals of its Orders
with "Whereas",266 the Tribunal (for no apparent reason, it seems) introduces the recitals of its Orders partly with "Whereas" and partly
with "Considering." It may be worthwhile to consider whether substitution of this style by simple prose would not be more user-friendly.
After the closure of the written proceedings and prior to the oral
proceedings, the Tribunal held its initial deliberations on 18 and 19 Feb265 Seealso article 25 para. 1 of the Statute.
266 See for example, Land and Maritime Boundary between Cameroon and
Nigeria, Provisional Measures, Order of 15 March 1996, Ie] Reports 1996,
13 et seq.
238
Max Planck UNYB 6 (2002)
ruary 1998, in accordance with article 68 of the Rules, and the parties
were informed on 20 February 1998 of the points and issues which the
Tribunal wished the parties especially to address. One such issue where
further clarification was sought was whether the release of the MN
"Saiga" and its crew was being requested as a measure to implement the
Tribunal's judgment of 4 December 1977 or as a "provisional measure. "267 Responding to this question at the public sitting held on 23
February 1998, Saint Vincent and the Grenad ines pointed out that the
provisional measures it was seeking were not intended to implement the
Tribunal's judgment of 4 December but intended to preserve the rights
of the parties pending final judgment on the merits and that, to dispel
any doubts, this position would be made clear in its final submissions.268 Accordingly, in its final submissions presented at the public
sitting held on 24 February 1998, Saint Vincent and the Grenadines
omitted references to compliance with the judgment of 4 December
1997. Guinea objected to this modification.
The recitals of the Order stated that "a modification of the submissions of a party is permissible provided that it does not prejudice the
right of the other party to respond" and that "in the present case the
right of Guinea to respond has not been prejudiced because it had been
given sufficient notice of the modification. "269 This statement has led to
the criticism that it was an "unexplained departure" from the practice of
the IC], since the Tribunal did not make any statement on the question
of whether the modification in the submission changed the nature of
the case; the IC] will not permit a change in the nature of the case
through modification of the submissions, the reason being that each
change could prejudice the rights of third States Parties to the litigation. 270 It does not appear that the Tribunal intended to depart from the
pract ice of the IC], which is also in consonance with article 31 of the
Statute of the Tribunal.V' On the facts of the case, it appears that the
267
268
269
270
271
The chapeau in para. 1 of the Reply of 13 February 1998 filed by Saint Vincent and the Grenadines spoke in terms of measures necessary to "comply
with the Judgment" of the Tribunal of 4 December 1997.
See ITLOS Doc . PV 98/1 of 23 February 1998, 57.
See Order of 11 March 1998, paras 32-34.
See S. Rosenne, "International Tribunal for the Law of the Sea: 1998 Survey", International Journal of Marine and Coastal Law 14 (1999), 453 et
seq., (461), citing Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, ICJ Reports 1992,240 et seq., (264).
Like Article 62 of the Statute of the IeJ, article 31 para. 1 of the Statute of
the Tribunal provides that should a State Party consider that it has an inter-
Chandrasekhara Rao, ITLOS: The First Six Years
239
modifications made by Saint Vincent and the Grenadines in its final
submissions did not change the nature of the case, but the Tribunal's
Order could have made this clear.
The parties disagreed as to whether the Tribunal had jurisdiction.
Whereas Saint Vincent and the Grenadines argued that the Tribunal had
jurisdiction under article 297, para. 1 of the Convention, Guinea maintained that the Tribunal did not have jurisdiction since the dispute in
question was covered by article 297, para. 3(a) of the Convention. In
the Exchange of Letters of 20 February 1998, the parties agreed to submit the dispute to the Tribunal and also agreed that the written and oral
proceedings before the Tribunal "shall comprise a single phase dealing
with all aspects of the merits (including damages and costs) and the objection to jurisdiction raised in the Government of Guinea's Statement
of response." The Tribunal considered that these agreements between
the parties did not provide sufficient basis for its jurisdiction to prescribe provisional measures so long as the objection to jurisdiction was
maintained.V' Hence, the Tribunal's Order, following the wording of
article 290, para. 1 of the Convention, declared that "before prescribing
provisional measures the Tribunal need not finally satisfy itself that it
has jurisdiction on the merits of the case and yet it may not prescribe
such measures unless the provisions invoked by the Applicant appear
prima facie to afford a basis on which the jurisdiction of the Tribunal
might be founded. "273
After the Tribunal began its deliberations on its Order in this case, it
was informed that the vessel and its crew had been released in execution
of the Tribunal's Judgment of 4 December 1997. In its Order, the Tribunal observed that, following the release of the vessel and its crew, the
prescription of a provisional measure for their release would serve "no
purpose. "274 The Tribunal, however, prescribed a provisional measure
272
273
274
est of a legal nature which may be affected by the decision in any dispute, it
may submit a request to the Tribunal to be permitted to intervene.
S. Rosenne, however, considers that the agreement of the parties to submit
the dispute to the Tribunal was sufficient to confer jurisdiction on the Tribunal and that this made it unnecessary for the Tribunal to look for any
other basis for its jurisdiction to prescribe provisional measures. See Rosenne, see note 270, 461.
See Order of 11 March 1998, para. 29. In this respect, article 290 para. 1 of
the Convention is based on the jurisprudence of the IC] . See Land and
Maritime Boundary between Cameroon and Nigeria, Provisional Measures,
Orderof15 March 1996, ICJ Reports 1996, 13 et seq., (21, para. 30).
See para. 40 of the Order of 11 March 1998.
240
Max Planck UNYB 6 (2002)
specifying that "Guinea shall refrain from taking or enforcing any judicial or administrative measure against the MN Saiga, its Master and the
other members of the crew, its owners or operators, in connection with
the incidents leading to the arrest and detention of the vessel on 28
October 1997 and to the subsequent prosecution and conviction of the
Master." The question is whether there was any justification for this
measure, since the vessel and its crew were free and away from Guinea
and the need for provisional measures other than the release of the vessel and its crew could be justified only if there was urgency.275
There is no doubt that the measure prescribed by the Tribunal was
different in part from those requested by Saint Vincent and the Grenadines, especially in so far as it related to the owners or operators of the
vessel. While the power of the Tribunal to prescribe measures different
from those requested is provided for in the Rules,276 it is obvious that
this power should be exercised with caution and circumspection. In the
present case, Saint Vincent and the Grenadines expressed the fear, especially during the oral proceedings, that its vessels and their operators
were at risk of being attacked.v? It appears that, while prescribing the
measure, the Tribunal felt the urgent need - though some might say
without adequate justification - to allay this fear. 278
The Tribunal also recommended that the parties "endeavour to find
an arrangement to be applied pending the final decision, and to this end
the two States should ensure that no action is taken by their respective
275 Though article 290 para. 1 of the Convention does not expressly refer to
the requirement of urgency, that requirement is to be read into the provision. The stipulation that provisional measures may be prescribed "pending
the final decision" clearly suggests that such measures are justified only if
action prejudicial to the rights of either party is likely to be taken before
such final decision is given. See Passage through the Great Belt (Finland v.
Denmark), Provisional Measures, Order of 29 July 1991, ICJ Reports 1991,
12 et seq., (17, para. 23); Land and Maritime Boundary between Cameroon
and Nigeria, Provisional Measures, Order of 15 March 1996, ICJ Reports
1996, 13 et seq., (22, para. 35).
276 See article 89 para. 5 of the Rules, which is modelled on Article 75 para. 2
of the Rules of the IC]. Seealso Judge ad hoc Shearer'sSeparateOpinion in
the Southern Bluefin Tuna Cases, in which he observed that provisional
measures may not be prescribed without a request for such measures by a
party.
277 SeeITLOS Doc. PV.98/1 of 23 February 1998,37 et seq.
278 Seepara. 41 of the Order of 11 March 1998. For the comment that the Order dealt with "hypothetical eventualities", see Rosenne, see note 270, 463.
Chandrasekhara Rao, ITLOS: The First SixYears
241
authorities or vessels flying their flag which might aggravate or extend
the dispute submitted to the Tribunal. "279 The non-aggravation provision 280 in this measure is an aspect of the main power conferred under
article 290, para. 1 of the Convention "to preserve the respective rights
of the parties to the dispute .,. pending the final decision." Or, in the
alternative article 290, para. 1, of the Convention may be said to apply
as an implied term what the PCI] described as "the principle universally
accepted by international tribunals and likewise laid down in many
conventions ... to the effect that the parties to a case must abstain from
any measure capable of exercising a prejudicial effect in regard to the
execution of the decision to be given, and, in general, not allow any step
of any kind to be taken which might aggravate or extend the dispute."281
Whereas the Order states that the provisional measure in operative
clause 1 of the Order was prescribed under article 290, para. 1 of the
Convention, there has been no indication of the basis on which the recommendation in operative clause 2 of the order was made. Nevertheless, the recommendation is a provisional measure, for there can be no
other measure in a provisional measures Order. It is not inherent to a
provisional measure that it should be ordered. The power to prescribe a
provisional measure includes the power to recommend, since the power
to do what is greater should include the power to do what is less.282
The IC] has recently held that it "has reached the conclusion that
orders on provisional measures under Article 41 have binding effect."283
What is clear from this statement is that the power to indicate under
Article 41 of the Statute of the ICJ should be read as the power to prescribe in the sense in which that expression is understood in article 290,
para. 1 of the Convention. Does it also suggest that every measure indi-
279 See para. 52(2) of the Order of 11 March 1998.
280 Measures designed to avoid aggravating or extending disputes have frequently been indicated by the ICJ. See the LaGrand Case, judgment of 27
june 2001, para. 103.
281 See Electricity Company of Sofia and Bulgaria, Order of 5 December 1939,
PClj, Series AlB, No . 79, 199. This principle was quoted with approval by
the ICJ in the LaGrand Case (Germany v. United States of America), see
note 280, para. 103. See also H.W.A. Thirlway, "The Indication of Provisional Measures by the International Court of Justice", in: R. Bernhardt
(ed .), Interim Measures Indicated by International Courts, 1994, 13.
282 See also Rosenne, seenote 270, 464.
283 Seethe LaGrand Case, see note 280, para. 109.
242
Max PlanckUNYB 6 (2002)
cated in an order on provisional measures has binding effect, especially
when the measure in question uses non-mandatory language?284 In the
LaGrand Case, the relevant provisional measure used the word
"should" (in English legal drafting, the word does not indicate a legal
obligation),285 a word consistently employed in the provisional measures generally indicated by the IC]. Or does the binding nature of a
measure depend upon the intention of the court as conveyed through
its wording?
In the Southern Bluefin Tuna Cases, the Tribunal too prescribed
provisional measures, some of which used the word "shall"286 and others used the word "should."287 If all the measures were to have binding
legal effect, why were some worded in mandatory language and not the
others ? By deciding that each party shall submit the initial report referred to in article 95, para. 1 of the Rules, upon the steps it has taken or
proposes to take in order to ensure prompt compliance with the measures prescribed, the Order leaves no doubt that all the measures are required to be complied with as provided for in article 290, para. 6 of the
Convention. In the more recent MOX Plant Case, the Order prescribing provisional measures included a paragraph in the non -operative part
designed to avoid aggravating or extending the dispute submitted to the
Annex VII arbitral tribunal. This non-aggravation clause conveys a recommendation which, like any other recommendation of a judicial body,
the parties are under a good faith obligation to take seriously into account, though they are not under any obligation to report on the steps
they have taken pursuant to it.
In both paras 1 and 5 of article 290, of the Convention, the Tribunal
is given the power to "prescribe" provisional measures. The word "prescribe" was used by the draftsmen of the Convention to underline what
the Tribunal's Order called "the binding force of the measures pre-
284 See generally Sir R. Jennings, "The LaGrand Case", The Law and Practice
ofInternational Courts and Tribunals 1 (2002), 13 et seq., (53-54).
285 Order of 3 March 1999. The measure states that "[tjhe United States of
America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and
should inform the Court of all the measures which it has taken in implementation of this Order".
286 See the Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v.
Japan), Order of 27 August 1999, para. 90 (l)(a) to (d).
287 Ibid., para. 90 (l)(e) and (f).
Chandrasekhara Rao, ITLOS: The First SixYears
243
scribed."288 The binding nature of provisional measures in the present
context is a matter of treaty law, for, as article 290, para. 6 of the Convention declares: "The parties to a dispute shall comply promptly with
any provisional measures prescribed under this article." While under
article 290, para. 1 of the Convention, the provisional measures may
remain in force pending the final decision of the Tribunal, under article
290, para. 5 the measures may remain in force until a decision in this regard is taken by the Annex VII arbitral tribunal, which may modify, revoke or affirm those measures. It is not the constitution of an arbitral
tribunal which is critical but a decision by that body on the measures
prescribed by the Tribunal.P? Provisional measures may be modified or
revoked as soon as the circumstances justifying them have changed or
ceased to exist. 290 The Tribunal may not on its own initiate proceedings
for prescribing, modifying or revoking provisional measures; such proceedings may be initiated only at the request of a party to the dispute
and after the parties have been given an opportunity to be heard.i?'
The obligation of the parties to comply with provisional measures
provided for in article 290, para. 6 of the Convention was further elaborated on in procedural terms in article 95 of the Rules, which provides:
1. Each party shall inform the Tribunal as soon as possible as to its
compliance with any provisional measures the Tribunal has prescribed. In particular, each party shall submit an initial report upon
the steps it has taken or proposes to take in order to ensure prompt
compliance with the measures prescribed.
2. The Tribunal may request further information from the parties
on any matter connected with the implementation of any provisional measures it has prescribed.
This provision elaborates on Article 78 of the ICJ's Rules, which provides that the Court may request information from the parties on any
288 See para. 48 of the Tribunal's Order of 11 March 1998. See also Virginia
Commentary, Vol. 5, see note 136, 53-55.
289 The Order in the MOX Plant Case prescribes the provisional measures
"pending a decision by the Annex VII arbitral tribunal." Likewise the Order in the Southern Bluefin Tuna Cases prescribes the measures "pending a
decision of the arbitral tribunal."
290 Seearticle 290 para. 2 of the Convention .
291 Seearticle 290 para. 3 of the Convention.
244
Max Planck UNYB 6 (2002)
matter "connected with the implementation of any provisional measures it has indicated . "292
The Orders made so far in the proceedings involving provisional
measures have required each party to submit the initial report referred
to in article 95, para. 1 of the Rules within a specified period and also
authorized the President of the Tribunal to request such further reports
and information as he might consider appropriate after that date. All
parties barring one have complied with such directions . In no cases has
the President asked for further reports and information.
The question may arise as to the purpose of seeking such reports
and information from the parties. The Tribunal is not empowered to
enforce compl iance with its orders. Nor can it initiate proceedings with
regard to provisional measures except at the request of an aggrieved
party. This does not mean that there is a diminution in the legal obligation of the parties to abide by the order or to render a proper account
of how this obligation is being discharged. Such rendering of reports
has a twofold objective. First, the party will be required to justify in its
reports to the Tribunal whether its actions are in conformity with the
provisional measures prescribed by the Tribunal. Second, the reports
may help in establishing a breach, if any, of obligations arising under
provisional measures prescribed by the Tribunal in the final decision on
the merits, whether of the Tribunal or of the arbitral tribunal. A State
which suffers damage as a result of a breach of such obligations is entitled to obtain reparation for the damage suffered from the State which
committed the wrongful act.293 In the LaGrand Case, the Ie] found
that the United States of America had breached the obligation incumbent upon it under the Order indicating provisional measures issued by
it on 3 March 1999.294 Reparation may take other forms depending on
292
293
294
For a recent case invoking this rule, see the Case concerning the Vienna
Convention on Consular Relations (Germany v. United States of America),
Request for the Indication of Provisional Measures, O rder of 3 March 1999,
para. 29.
See Factory at Chorzow, Merits, judgment No. 13, 1928, PClj, Series A,
No . 17, 14.
See Judgment, see note 280, para. 128(5). The Court noted that Germany
requested it to adjudge and declare "only that the United States violated its
international legal obligation to comply with the Order of 3 March 1999; it
contains no other request regarding that violation". See Judgment, para.
116.
Chandrasekhara Rao, ITLOS: The First Six Years
245
the circumstances of the case.295 The legal position may not be so simple in all cases. The following questions arise:
[I]f one accepts that the Order indicating provisional measures is
binding, what happens if it is breached before the end of the case,
but judgment is given for the Respondent? Is it open to the Court
simultaneously to find that the Applicant has not made out the
rights it claims, and to give judgment against the Applicant, but at
the same time to find that the Order made to protect those rights has
not been complied with, and that the Respondent is therefore condemned for not having complied with those measures? Can the Respondent be ordered to pay reparation for breach of a right which
the Court in the same breath says does not exist?296
The answers to these questions are also questions: What is the meaning
of the declaration in article 290, para. 6 of the Convention that the parties to the dispute shall comply with any provisional measures prescribed under that article? Is it not arguable that the obligation to implement provisional measures is an independent one and failure to discharge it could give rise to international responsibil ity. There are as yet
no clear judicial decisions clarifying the legal position in this regard.
b. The Southern Bluefin Tuna Cases
The Southern Bluefin Tuna Cases and the MOX Plant Case are cases
submitted to the Tribunal for the prescription of provisional measures
under article 290, para. 5 of the Convention. Under this paragraph,
pending the constitution of an arbitral tribunal to which a dispute is
being submitted under section 2 of Part XV, when the Tribunal-i" is
presented with a request for the prescription of provisional measures, it
may prescribe, modify or revoke provisional measures in accordance
with article 290 "if it considers that prima facie the tribunal which is to
be constituted would have jurisdiction and that the urgency of the
situation so requires." Once constituted, the arbitral tribunal to which
the dispute has been submitted may modify, revoke or affirm the provisional measures, acting in conformity with paras 1 to 4 of article 290.
The main difference between paras 1 and 5 of article 290 is that, whereas
295 See generally the M/V "Saiga" (No.2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, paras 170-171.
See Thirlway, see note 281, 31.
297 The Seabed D isputes Chamber with respect to activities in the international
seabed area.
296
246
MaxPlanck UNYB 6 (2002)
under para. 1 the Tribunal could prescribe provisional measures if it
considers that prima facie it has jurisdiction under Part XI or Part XV
of the Convention, under para. 5 the Tribunal could prescribe such
measures if it considers that prima facie the arbitral tribunal which is to
be constituted would have jurisdiction under Part XI or Part XV of the
Convention.s'f
Article 89, para. 3 of the Rules requires that the party requesting
provisional measures should specify, among other things, the possible
consequences if the request is not granted for the preservation of the respective rights of the parties or for the prevention of serious harm to
the marine environment. This applies whether the request is made un der article 290, para. 1 or para. 5. Article 89, para. 4 of the Rules provides that, when a request is made under article 290, para. 5 it must indicate the legal grounds upon which the arbitral tribunal would have jurisdiction and the urgency of the situation. Though not explicitly
stated, this applies with equal force to a request made under article 290,
para . 1 of the Convention.
Pending the meeting of the Tribunal, the President of the Tribunal is
authorized to call upon the parties to act in such a way as will enable
any order the Tribunal may make on the request for provisional measures to have "its appropriate effects."299 The President may exercise this
power where the urgency of the situation demands action which cannot
wait until the Tribunal meets. There has been no occasion so far to invoke this provision.
aa. Background to the Disputes
It may be useful to indicate, in brief, the background to the disputes.
Southern bluefin tuna or "SBT" (Thunnus maccoyiit. is a highly migratory species of pelagic fish and is included in the list of highly migratory species in Annex I to the Convention. This species occurs widely
across the high seas regions of the southern hemisphere and also traverses the EEZs and territorial seas of some States, including Australia,
New Zealand and South Africa but not Japan. SBT spawns in the waters south of Indonesia. Approximately 90 per cent of the global catch
of SBT is sold on the Japanese market.
298 Arts 89 to 95 of the Rules deal with the procedural aspects of provisional
measures.
299 See article 90 para. 4 of the Rules. This provision corresponds to Article 74
para. 4 of the Rules of the IC].
Chandrasekhara Rao, ITLOS: The First Six Years
247
Significant commercial harvesting of SBT began in the early 1950s,
and in 1961 the global SBT catch peaked at over 81.000 tonnes. By 1980,
estimates of the parental stock had declined to 25-30 per cent of its 1960
level. In 1985 Australia, New Zealand and Japan entered into a trilateral
agreement which established a global total allowable catch (hereafter,
"TAC") for SBT and national allocations. In 1989, a TAC of 11.750
tonnes was agreed, with national allocations of 6.065 tonnes, 5.265 tonnes and 420 tonnes for Japan, Australia and New Zealand, respectively.
The SBT stock continued to decline. In 1997, it was estimated to be in
the order of 7-15 per cent of its 1960 level. In 1998, the recruitment of
SBT stock was estimated to be around one third of the 1960 level. The
effectiveness of TAC restrictions was also affected by the entry of fishermen engaged in fishing for SBT, notably from the Republic of Korea,
Taiwan and Indonesia.
In 1993 Australia, New Zealand and Japan concluded the Convention for the Conservation of Southern Bluefin Tuna (hereafter "the 1993
Convention"), whose objective is to ensure, through appropriate management, the conservation and optimum utilization of SBT. This Convention noted the adoption of the United Nations Convention on the
Law of the Sea, 1982. It established the Commission for the Conservation of SBT (hereafter "the Commission") and empowered it to decide
upon a total allowable catch and its allocation among the parties. In
May 1994, the Commission set a TAC of 11.750 tonnes, with national
allocations of 6.065 tonnes, 5.265 tonnes and 420 tonnes for Japan,
Australia and New Zealand, respectively Since then, there has been no
agreement to change the TAC level or national allocations from that
level. Since 1998, the Commission has not been able to agree upon any
TAC. The parties, however, discussed the concept of an experimental
fishing programme (EFP) under the Commission as a means of reducing uncertainty as to the state of the stock. In 1996, the Commission
also approved a set of objectives and principles for the design and implementation of an EFP. It was, however, unable to agree upon the size
of the catch that would be allowed under the EFP or on the modalities
for implementing the programme. The Commission, however, agreed
on the objective of restoring the parental stock to its 1980 level by the
year 2020, thereby indicating that it assumed that the stock would be
self-sustaining at the 1980 SBT spawning stock biomass.
In February 1998,Japan stated that, in addition to its previous quota
for commercial SBT fishing, it would commence a unilateral, three-year
EFP starting in the summer of 1998. Despite protests by Australia and
New Zealand, Japan conducted a pilot programme with an estimated
248
Max Planck UNYB 6 (2002)
catch of 1.464 tonnes of SBT in the summer of 1998. At the request of
Australia and New Zealand, consultations and negotiations took place
within the framework of article 16(1) of the 1993 Convention. Article
16 reads as follows:
1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention,
those Parties shall consult among themselves with a view to having
the dispute resolved by negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement or other peaceful means of their own
choice.
2. Any dispute of this character not so resolved shall, with the consent in each case of all parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court of
Justice or to arbitration shall not absolve parties to the dispute from
the responsibility of continuing to seek to resolve it by any of the
various peaceful means referred to in para. 1 above.
3. In cases where the dispute is referred to arbitration, the arbitral
tribunal shall be constituted as provided in the Annex to this Convention. The Annex forms an integral part of this Convention.
The consultations failed to promote agreement. Again in May 1999, Japan announced that, unless Australia and New Zealand accepted a 1999
joint EFP, it would recommence unilateral experimental fishing on 1
June 1999. Since Australia and New Zealand considered that the design
and analysis of Japan's EFP were fundamentally flawed, they informed
Japan that, if it went ahead with its experimental fishing on 1 June 1999
or thereafter, such action would be treated as a termination by Japan of
negotiations under article 16(1) of the 1993 Convention. Japan resumed
its EFP on 1 June 1999; it maintained that the EFP would continue until
the end of August 1999, during which time the experimental vessels
would catch approximately 2.000 tonnes of SBT. Though Japan was
willing to have the dispute resolved by mediation or arbitration under
article 16 of the 1993 Convention, neither procedure was followed in
view of Japan's unwillingness to cease its unilateral experimental fishing
pending the resolution of the dispute as insisted by Australia and New
Zealand.
Japan also contended that there was no urgency to the prescription
of provisional measures in the circumstances of this case, since there
was no irreparable damage that would occur between then and when
the Annex VII arbitral tribunal might act provisionally. If Japan's ex-
Chandrasekhara Rao, ITLOS: The First Six Years
249
perimental fishing had caused adverse effects, they could be fully compensated by future reductions in Japan's catch. Japan further stated that
the precautionary principle relied upon by Australia and New Zealand
was neither incorporated in the Convention, nor had attained the status
of a rule of customary international law.
The major difference between Japan on the one hand and Australia
and New Zealand on the other centred on the future of the SBT stock
and a scientific programme which would best contribute to reducing
the uncertainties regarding the stock.
On 15 July 1999, New Zealand and Australia notified Japan of the
institution of arbitral proceedings against Japan under Annex VII to the
Convention. Pending the constitution of the arbitral tribunal, on 30
July 1999 New Zealand and Australia filed with the Tribunal separate
but identical Requests for the prescription of provisional measures under article 290, para. 5 of the Convention. Since the Tribunal did not include upon the bench a judge of the nationality of Australia or New
Zealand, as parties in the same interest, they jointly appointed Professor
Shearer of Australia as judge ad hoc in both cases. Japan filed a single
statement in response to both the Requests. By its Order dated 16
August 1999, the Tribunal joined the proceedings instituted by the Requests of New Zealand and Australia.F? The cases were argued at the
public sittings held on 18, 19 and 20 August 1999. The Tribunal gave its
Order on 27 August 1999, within 27 days of the filing of the Requests
and seven days after the presentation of the oral statements, in which it
found that the arbitral tribunal would prima facie have jurisdiction and
prescribed certain provisional measures.
bb. Primafacie]urisdietion
New Zealand and Australia alleged that Japan, by unilaterally designing
and undertaking an experimental fishing programme, had failed to
comply with obligations under arts 64 and 116 to 119 of the Law of the
Sea Convention, with provisions of the 1993 Convention and with rules
of customary international law. They had invoked, as the basis for the
jurisdiction of the arbitral tribunal, article 288, para. 1 of the Law of the
Sea Convention, which provides that a court or tribunal referred to in
article 287 shall have jurisdiction over any dispute concerning the interpretation or application of the Convention which is submitted to it in
accordance with Part XV of the Law of the Sea Convention.
300
See article 17 para. 5 of the Statute and article 47 of the Rules .
250
Max Planck UNYB 6 (2002)
Japan argued that there was no basis for the Tribunal to satisfy itself
that prima facie the arbitral tribunal would have jurisdiction. It denied
having failed to comply with any of the provisions of the Law of the
Sea Convention. According to it, the dispute concerned the interpretation or application of the 1993 Convention; it did not concern the interpretation or application of the Law of the Sea Convention. It was
further stated that Australia and New Zealand had not identified any
provisions of the Law of the Sea Convention Japan was alleged to have
violated (or how it had violated them) until June 1999, shortly before
initiating arbitral proceedings under the Law of the Sea Convention.
Japan maintained that recourse to the arbitral tribunal was excluded because the 1993 Convention provided for a dispute settlement procedure
of its own. It further contended that Australia and New Zealand had
failed to exhaust the procedures for amicable dispute settlement under
Part XV, section 1, of the Law of the Sea Convention, in particular article 283, through negotiations or other peaceful means, before submitting the disputes to a compulsory procedure under Part Xv, section 2,
of the Law of the Sea Convention. Japan also argued that article 281 of
the Law of the Sea Convention stood in the way of invocation of arbitration under article 287 and the application of provisional measures
under article 290, in view of article 16 of the 1993 Convention, under
which the parties agreed to continue negotiating among themselves until they had either resolved the substance of the dispute or agreed upon
a mechanism for third-party intervention to help resolve it. It was also
stated that the disputes were scientific rather than legal.
The Tribunal found the arguments of Japan unpersuasive. The records showed that the negotiations and consultations that had taken
place between the parties were considered by Australia and New Zealand to come under both the 1993 Convention and the Law of the Sea
Convention, that New Zealand and Australia also had invoked the provisions of the Law of the Sea Convention in diplomatic notes addressed
to Japan in respect of those negotiations, and that the provisions of the
Law of the Sea Convention invoked by New Zealand and Australia
(arts 64 and 116 to 119) as having been breached by Japan had a direct
bearing on the dispute in question, and that , accordingly, the dispute
concerned points of law which called for the interpretation or application of the Law of the Sea Convention in respect of the conservation
and management of southern bluefin tuna. The Tribunal declared that a
State Party was not obliged to pursue procedures for amicable dispute
settlement under Part XV, section 1, of the Law of the Sea Convention
when it concluded that the possibilities of settlement had been ex-
Chandrasekhara Rao, ITLOS: The First Six Years
251
hausted. This conclusion became inevitable from the consultations and
negotiations that had taken place between the parties with no prospect
of reaching an agreement. While under section 1 of Part XV of the Law
of the Sea Convention there is an obligation to exchange views so long
as there is a likelihood of settling a dispute, there is no requirement that
negotiations should be pursued for the sake of negotiations .
The 1993 Convention, especially article 16 thereof, does not provide
for the settlement of disputes concerning the interpretation or application of the Law of the Sea Convention. Article 16 of the 1993 Convention deals with disputes between parties to it concerning the interpretation or implementation of "this Convention." Nor does it appear that
the 1993 Convention was taken by the parties as containing a compromissory clause of their own choice to settle disputes concerning the
interpretation or application of the Law of the Sea Convention. The
Tribunal considered that the fact that the 1993 Convention applied
between the parties did not exclude their right to invoke arts 64 and 116
to 119 of the Law of the Sea Convention in respect of the conservation
and management of southern bluefin tuna. The logic of this premise was
subsequently elaborated upon in the MOX plant Case, as will be seen
later in this paper. Article 16 of the 1993 Convention does not provide
for compulsory binding adjudication or arbitration; the procedure out lined therein is "essentially circular, since if the parties are not agreed on
reference to arbitration or judicial settlement the process of negotiation
goes around and around, potentially without end. "301 If the parties to
the 1993 Convention intended to exclude the application of the Part XV
procedures, that intention is not made explicit in article 16, nor should
exclusion of Part XV of the Law of the Sea Convention be read into article 16 by necessary implication, for that could block recourse to compulsory dispute settlement procedures altogether. Such a position
would not be consistent with the underlying objective of Part XV, section 2, of the Law of the Sea Convention and should not be accepted
lightly, unless the parties made it explicit in their agreement that they
intended to exclude Part XV of the Law of the Sea Convention. The
Tribunal found that the requirements for invoking the procedures under Part XV; section 2, of the Law of the Sea Convention had been fulfilled, that the provisions of the Law of the Sea Convention invoked by
Australia and New Zealand appeared to afford a basis on which the ju-
301
See Separate Opinion of Judge ad hoc Shearer in the Southern Bluefin Tuna
Cases.
252
Max Planck UNYB 6 (2002)
risdiction of the arbitral tribunal might be founded, and that the arbitral
tribunal would prima facie have jurisdiction over the disputes.F"
cc. Urgency
Japan also contended that there was no urgency to the prescription of
provisional measures in the circumstances of this case, since no irreparable damage would occur during the intervening period before the
Annex VII arbitral tribunal might act provisionally.F" If Japan's experimental fishing had caused adverse effects, they could be fully compensated by future reductions in Japan's catch. Japan further stated that
the precautionary principle relied upon by Australia and New Zealand
was neither incorporated in the Convention, nor had it attained the
status of a rule of customary international law.
The Tribunal noted that Japan's experimental fishing consisted of
three annual programmes in 1999,2000 and 2001, that Japan had made a
commitment that the 1999 experimental fishing programme would end
by 31 August 1999, and that Japan had made no commitment regarding
any experimental fishing programmes after 1999.304 The Tribunal was
also told by the parties that commercial fishing for SBT was expected to
continue throughout the remainder of 1999 and beyond and that the
302
303
304
Seethe Order of 27 August 1999 in the Southern Bluefin Tuna Cases, paras
52,61 and 62. The Annex VII Arbitral Tribunal, in its Award of 4 August
2000, held, by vote of 4 to 1, that it was without jurisdiction to rule on the
merits of the dispute. For the Award, ILM 39 (2000), 1359 et seq. For a
critical comment, see B.H. Oxman, "Complementary Agreements and
Compulsory Jurisdiction", AjIL 95 (2001),277 et seq.; P. Sands, "ITLOS :
An International Lawyer's Perspective", in: M.H. Nordquistl J. Norton
Moore (eds), Current Marine Environmental Issues and the International
Tribunal for the Law of the Sea, 2001, 141 et seq., (149-153); M.D. Evans,
"The Southern Bluefin Tuna Arbitration", ICLQ 50 (2001), 447 et seq.; B.
Kwiatkowska, "The Australia and New Zealand v, Japan Southern Bluefin
Tuna (jurisdiction and Admissibility) Award of the First Law of the Sea
Convention Annex VII Arbitral Tribunal", International Journal of Marine
and Coastal Law 16 (2001), 239 et seq.
The Annex VII Arbitral Tribunal held its hearing on jurisdiction from 7 to
11 May 2000.
See the Order of 27 August 1999 in the Southern Bluefin Tuna Cases, paras
82 to 84.
Chandrasekhara Rao, ITLOS: The First SixYears
253
catches of non-parties to the 1993 Convention had increased considerably since 1996.305
It was common ground between the parties that the stock of SBT
was severely depleted and at its historically lowest level and that this
was a cause for serious biological concern.F" The Tribunal also noted
that there was scientific uncertainty regarding measures to be taken to
conserve the stock of SBT and that there was no agreement among the
parties as to whether the conservation measures taken until then had led
to the improvement in the stock of SBT.307 Unable to assess conclusively the scientific evidence presented by the parties, the Tribunal considered that "the parties should in the circumstances act with prudence
and caution to ensure that effective conservation measures [were] taken
to prevent serious harm to the stock of southern bluefin tuna."308 This
approach became all the more warranted by the Tribunal's declaration
that "the conservation of the living resources of the sea is an element in
the protection and preservation of the marine environment. "309 It is not,
however, necessarily linked to the marine environment. The Law of the
Sea Convention makes it apparent that the conservation of the living resources of the high seas is an objective that transcends the immediate
interests of the parties; it is an objective in whose pursuit the international community as a whole is interested. That the "prudence and caution" the Tribunal referred to mayor may not have derived their inspiration from a precautionary approach is beside the point: the competence of a tribunal empowered to prescribe provisional measures to call
upon the parties to act with prudence and caution should be taken as
universally well-established. Taking this view, the Tribunal did not find
that the "pay back" principle advanced by Japan would satisfy the requirements of the situation. The Tribunal, therefore, found that provisional measures should be taken as a matter of urgency to "avert further
deterioration" of the SBT stock,310 which it saw as impinging on both
the preservation of the rights of the parties and the prevention of harm
to the marine environment.
305
306
307
308
309
310
Ibid., paras 75 and 76.
Ibid.
Ibid.
Ibid., para. 77.
Ibid., para. 70.
Ibid., para. 80.
254
Max Planck VNYB 6 (2002)
dd. ProvisionalMeasures
Accordingly, the Tribunal prescribed the following measures, among
others:
(c) Australia, Japan and New Zealand shall ensure, unless they
agree otherwise, that their annual catches do not exceed the annual
national allocations at the levels last agreed by the parties of 5,265
tonnes, 6,065 tonnes and 420 tonnes, respectively; in calculating the
annual catches for 1999 and 2000, and without prejudice to any decision of the arbitral tribunal, account shall be taken of the catch during 1999 as part of an experimental fishing programme;
(d) Australia, Japan and New Zealand shall each refrain from conducting an experimental fishing programme involving the taking of a
catch of southern bluefin tuna, except with the agreement of the
other parties or unless the experimental catch is counted against its
annual national allocation as prescribed in subpara. (c);
(e) Australia , Japan and New Zealand should resume negotiations
without delay with a view to reaching agreement on measures for
the conservation and management of southern bluefin tuna;
Australia, Japan and New Zealand should make further efforts
to reach agreement with other States and fishing entities engaged in
fishing for southern bluefin tuna, with a view to ensuring conservation and promoting the objective of optimum utilization of the
stock.
The measure regarding making further efforts to reach agreement with
non-parties to the 1993 Convention was not directly brought before the
Tribunal by the parties; but it was essential, in the view of the Tribunal,
to avert further deterioration of the SBT stock.'!' The Tribunal made an
effort to present a holistic solution for removing the underlying difficulties in ensuring effective conservation measures . That the Order of
the Tribunal has helped the parties in making progress in settling their
(f)
311
In prescribing this measure, the Tribunal relied upon article 89 para. 5 of
the Rules, by virtue of which it may prescribe measures different in whole
or in part from those requested .
Chandrasekhara Rao, ITLOS: The First Six Years
255
dispute and in encouraging them also to make progress on the issue of
third-party fishing is documented elsewhere.W
c. The MOX Plant Case
On 9 November 2001, a Request for the prescription of provisional
measures (hereafter "the Request") under article 290, para. 5 of the
Convention, pending the constitution of an arbitral tribunal to be established under Annex VII of the Convention, was submitted to the
Tribunal by Ireland against the United Kingdom "in the dispute concerning the MOX plant, international movements of radioactive materials, and the protection of the marine environment of the Irish Sea." The
dispute, according to the Request, arose out of the planned commissioning of the MOX plant in Sellafield on the west coast of England on
20 December 2001. The plant is designed to reprocess spent nuclear fuel
into a new fuel, which combines reprocessed plutonium with uranium.
The new fuel is known as mixed oxide (MOX) fuel. The United Kingdom and Ireland lie on opposite sides of the Irish Sea. The site at Sellafield is some 112 miles from the Irish coast at its closest point. The Irish
Request was accompanied by a copy of a document dated 25 October
2001, instituting arbitral proceedings against the United Kingdom. The
Request was entered in the List of Cases as Case No. 10 and named the
MOX Plant Case . The United Kingdom filed its Written Response on
15 November 2001. Ireland had chosen, pursuant to article 17, para. 2
of the Statute, Mr. Alberto Szekely, of Mexican nationality, to sit as
judge ad hoc. Oral statements were presented at four public sittings,
held on 19 and 20 November 2001.
Ireland, in its final submissions at the public sitting held on 20 November 2001, requested the prescription by the Tribunal of the following provisional measures:
312
(1)
that the United Kingdom immediately suspend the authorisation of the MOX plant dated 3 October, 2001, alternatively
take such other measures as are necessary to prevent with immediate effect the operation of the MOX plant;
(2)
that the United Kingdom immediately ensure that there are no
movements into or out of the waters over which it has sover-
See, for example, the Award of the Arbitral Tribunal in the Southern Bluefin Tuna Cases, paras 67-69; B. Mansfield, "The Southern Bluefin Tuna Arbitration: Comments on Professor Barbara Kwiatkowska's Article", InternationalJournal of Marine and Coastal Law 16 (2001), 361 et seq.
256
Max Planck UNYB 6 (2002)
eignty or exercises sovereign rights of any radioactive substances or materials or wastes which are associated with the operation of, or activities preparatory to the operation of, the
MOXplant;
(3) that the United Kingdom ensure that no action of any kind is
taken which might aggravate, extend or render more difficult of
solution the dispute submitted to the Annex VII tribunal (Ireland hereby agreeing itself to act so as not to aggravate, extend
or render more difficult of solution that dispute); and
(4) that the United Kingdom ensure that no action is taken which
might prejudice the rights of Ireland in respect of the carrying
out of any decision on the merits that the Annex VII tribunal
may render (Ireland likewise will take no action of that kind in
relation to the United Kingdom).
In its final submissions, the United Kingdom requested the Tribunal to
reject Ireland's request for provisional measures and also order Ireland
to bear the United Kingdom's costs in the proceedings.
In support of its case, Ireland contended that the Irish Sea was
amongst the most radioactively polluted seas in the world 313 and that
the overwhelming majority of that pollution came from the Sellafield
site, where the MOX plant was due to be brought into operation.I'" It
pointed out that, if commissioned, the MOX plant would contribute to
the further contamination of the Irish Sea. The manufacture of the
MOX fuel would inevitably lead to some discharges of radioactive substances into the marine environment, via direct discharges and through
the atmosphere.U'' It was underlined that the Irish Sea is a semienclosed sea, from which pollution was less readily swept away than it
would be from an open ocean coast. 316 It was further stated that the
MOX plant would expose Ireland to the risks of accidents, from the
plant and from nuclear transports, and to the even greater risk arising
out of terrorist-type attacks, especially in the aftermath of events in
New York and Washington on 11 September 2001. 317 It was noted that
each shipment of the MOX fuel prepared at Sellafield would pass close
313
314
315
316
317
See the Request, para. 10.
See the statement of the Attorney General of Ireland III Doc. ITLOS/PV.01/06/Rev.1,8.
See the Request, para. 28.
See the statement of Fitzsimons in Doc. ITLOS/PV.01l06/Rev.l, 15.
Ibid .
Chandrasekhara Rao, ITLOS: The First Six Years
257
to Ireland. It was added that no nuclear reactor in the United Kingdom
currently used MOX fuel and that the fuel produced by the MOX plant
would be exported, primarily by sea. Ireland further stated that the
MOX activities would also increase discharges into the Irish Sea from
the Thermal Oxide Reprocessing Plant at Sellafield, commonly known
as the THORP plant, which reprocessed spent or waste nuclear power
reactor fuel elements on a commercial basis. It also stated that it was
particularly concerned about its marine environment, not least since a
significant proportion of its economy related to fisheries activities in the
Irish Sea, including areas in close proximity to the Sellafield site and
those in which international movements of plutonium and other radioactive substances would occur.318
Ireland pointed out that it was gravely concerned about the MOX
plant and its implications, either direct or indirect, for the Irish Sea, and
had been expressing its concerns since 1993. In 1994, it submitted its
comments on and objections to the 1993 Environmental Statement prepared by British Nuclear Fuels Limited (BNFL), the operator of the
MOX plant, setting out the views of the Government of Ireland on the
inadequacies of the 1993 Statement. The 1993 Statement was never updated. Between 1997 and 2001, Ireland stated that it had submitted
comments on five occasions, addressing also its environmental concerns.U? It further added that it had first raised its specific concerns
with regard to the Convention in its letters of 30 July 1999 and 23 December 1999, but the United Kingdom had chosen not to respond to
the concerns of Ireland. It was pointed out that the United Kingdom
kept secrecy about the MOX plant and failed to provide Ireland with
information on material matters, including the following : the number of
shipments of spent fuel into the Irish Sea envisaged at the MOX plant;
the quantity and types of discharges of radioactive wastes from the
MOX plant into the Irish Sea; the number of years the MOX plant
would operate for and the number of shipments transporting MOX fuel
to Japan and to other countries; and the quantity of additional radioactive material that would be discharged into the Irish Sea from the
THORP plant, as a consequence of the commissioning of the MOX
plant.V?
318
319
320
See the Request, para. 5.
Ibid., para. 44.
See the statement of the Attorney General of Ireland, see note 314, 9, and
the statement of Sands in Doc. ITLOSfPV.Ol107/Rev.I, 5.
258
Max PlanckUNYB 6 (2002)
In a letter of 23 December 1999, Ireland requested the United Kingdom to carry out a new environmental impact assessment procedure,
taking into account the requirements of the instruments referred to
therein, including the Convention. It further requested that the MOX
plant not be put into operation until the new assessment procedure had
been carried out.321 By its letter of 9 March 2000, the United Kingdom
responded by stating that it was "still in the process of coming to a final
decision on the full operation of the plant", that it would publish a
document setting out its final decision and the "reasons in full" and that
it would send a copy to Ireland immediately after it had been published. 322 It was alleged that subsequently the United Kingdom simply
announced, on 3 October 2001, that the operation of the MOX plant
had been authorized.F' In a letter of 16 October 2001, Ireland stated
that the decision of the United Kingdom to proceed with the authorization of the MOX plant was in violation of the provisions of various
international instruments, including the Convention, that, accordingly,
disputes had arisen between it and the United Kingdom in relation to
each of these instruments, that the United Kingdom should suspend
with immediate effect the authorization of the MOX plant, that the
United Kingdom should take steps to comply with its obligations under arts 192 to 194 of the Convention, that, since "the United Kingdom
appears strongly committed to the authorization and early operation of
the MOX plant there would appear to be little point in proceeding to
an exchange of views regarding the settlement of the dispute under
UNCLOS by negotiation or by means envisaged by Article 283 of
UNCLOS" and that "(njevertheless, Ireland wishes to signal its availability to proceed to such an exchange if the United Kingdom considers
that an exchange could be useful."324 In its reply of 18 October 2001,
the United Kingdom pointed out that it was anxious to exchange views
on the points made in the Irish letter of 16 October 2001 but needed to
understand why Ireland considered the United Kingdom to be in
breach of provisions and principles identified therein.F' In a letter
dated 23 October 2001, Ireland explained its position concerning the
incompatibility of the MOX plant with the United Kingdom's international obligations. It stated that if there was an indication that the
321
322
323
324
325
For the text of this letter, seeAnnex 1 to the Request, 87.
For the text of the letter, seeAnnex 2 to the Request, 11.
For the News Release on the subject, seeAnnex 1 to the Request, 107.
For the text of this letter, seeAnnex 1 to the Request, 30.
Ibid., 257.
Chandrasekhara Rao, ITLOS: The First Six Years
259
United Kingdom might suspend the authorization of the MOX plant,
Ireland "would be pleased to offer to host an exchange of views in
Dublin later this week. "326 In the absence of such indication, Ireland
stated, it reserved its right to institute proceedings before appropriate
international courts or tribunals without further notice. In a letter dated
24 October 2001, the United Kingdom stated again that Ireland's position on the subject matter of the alleged dispute or disputes remained
unclear to it and that "(i)t [was] in fact the case that the authorization
procedure for the MOX plant [had] not yet been completed. "327 In a
letter dated 25 October 2001, Ireland sated that it had learnt that BNFL
intended to take irreversible steps in relation to the operation of the
MOX plant on or around 23 November 2001, and that, unless the
United Kingdom provided an immediate voluntary undertaking to delay the commissioning of the MOX plant, Ireland reserved its right to
issue proceedings under the Convention without further notice.V" This
constituted the background to the Request as explained by Ireland.
The question before the Tribunal was whether the Request for provisional measures had been made in accordance with the provisions of
article 290, para. 5 of the Convention. At the outset, it was noted that
Ireland had on 25 October 2001 notified the United Kingdom of the
submission of the dispute to the Annex VII arbitral tribunal and of the
Request for provisional measures and that, on 9 November 2001, after
the expiry of the time-limit of two weeks provided for in article 290,
para. 5 of the Convention, and pending the constitution of the Annex
VII arbitral tribunal, Ireland had submitted to the Tribunal a Request
for provisional measures.
The next question which needed to be answered was whether the
Tribunal considered that prima facie the Annex VII arbitral tribunal
which was to be constituted would have jurisdiction. Ireland answered
the question in the affirmative, arguing that it had submitted its dispute
with the United Kingdom to the Annex VII arbitral tribunal in accordance with arts 286,287 para. 5, and 288 para. 1, of the Convention. It
pointed out that the dispute concerned the question as to whether the
United Kingdom had fulfilled its duties under arts 192 to 194, 207, 211,
212 and 213 of the Convention to prevent, reduce and control deliberate and accidental pollution of the Irish Sea, and to assess the risk of terrorist attack on the MOX plant and on movements of radioactive mateIbid., 259.
Ibid., 260.
328 Ibid., 261.
326
327
260
Max Planck UNYB 6 (2002)
rial associated with it; its duties under arts 123 and 197 of the Convention to cooperate with Ireland in the protection of the marine environment of the Irish Sea; and its duties under article 206 of the Convention
properly to assess the potential effects of the MOX plant and associated
activities upon the marine environment of the Irish Sea.329 Ireland contended that it was entitled to submit the dispute to the Annex VII tribunal, no settlement having been reached by negotiation or other
peaceful means as provided for in article 283, para. 1 of the Convention. 330
The United Kingdom argued that prima facie the Annex VII arbitral
tribunal would not have jurisdiction for more than one reason. The case
in this regard rested on arts 282331 and 283332 of the Convention. It was
argued that since the matters of which Ireland complained were governed by regional agreements providing for alternative and binding
means of resolving disputes and had actually been submitted to such
alternative tribunals, or were about to be so submitted, article 282
served as a barrier to the assumption of the jurisdiction by the Annex
VII arbitral tribunal. 333 Attention was drawn in this connection to the
dispute submitted by Ireland to an arbitral tribunal under the 1992
Convention for the Protection of the Marine Environment of the
North-East Atlantic (hereafter "the OSPAR Convention") and to Ireland's declaration of its intention of initiating separate proceedings in
329
330
331
332
333
See the Request, 55-56.
Ibid.
Article 282 reads as follows:
If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the
request of any party to the dispute, be submitted to a procedure that entails
a binding decision, that procedure shall apply in lieu of the procedures
provided for in this Part, unless the parties to the dispute otherwise agree.
Article 283 reads as follows:
1. When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall
proceed expeditiously to an exchange of views regarding its settlement by
negotiation or other peaceful means.
2. The parties shall also proceed expeditiously to an exchange of views
where a procedure for the settlement of such a dispute has been terminated
without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the
settlement .
See the Written Response of the United Kingdom, 1-4.
Chandrasekhara Rao, ITLOS: The First Six Years
261
respect of the United Kingdom's alleged breach of obligations arising
under the Treaty establishing the European Community (hereafter "the
EC Treaty") or the Treaty establishing the European Atomic Energy
Community (hereafter "the Euratom Treaty") and the Directives issued
thereunder.P" The United Kingdom stated that since each allegation
made against it was to be determined by the compulsory dispute settlement procedures of the OSPAR Convention or the EC Treaty or the
Euratom Treaty, the Annex VII arbitral tribunal would not have jurisdiction by virtue of article 282 of the Convention.P>
In response to the objection based on article 282, Ireland pointed
out that that article applied where there was a "dispute concerning the
interpretation or application of this Convention," that is, the Law of
the Sea Convention, and the parties had agreed to settle such a dispute
by a procedure entailing a binding decision, and that the disputes submitted by it under other regional agreements concerned not the interpretation of the Convention but the interpretation or application of
such regional agreemenrs.I" It was further stated that, in principle, the
rights and duties under the Law of the Sea Convention, the OSPAR
Convention, the EC Treaty and the Euratom Treaty were cumulative,
that Ireland, as a State Party, could rely on any or all of them as it chose,
and that if an international tribunal had jurisdiction over a matter, a
claimant was entitled to its remedy, even if there were other tribunals in
which it might have chosen to pursue its case.337
The Tribunal found no difficulty in accepting the basic argument of
Ireland and in declaring that, for the purpose of determining whether
the Annex VII arbitral tribunal would have prima facie jurisdiction, article 282 of the Convention was not applicable to the dispute in question . It held that the dispute before the Annex VII arbitral tribunal concerned the interpretation or application of the Law of the Sea Convention and no other agreements, that, even if the regional agreements in
question contained rights or obligations similar to or identical with the
rights or obligations set out in the Law of the Sea Convention, the
rights and obligations under these agreements had "a separate existence
334
335
336
337
Ibid., 59-62.
Ibid. See also the statement of the Attorney General of the United Kingdom made at a public sitting held on 19 November 2001 in Doc. ITLOS/
Pv'01l07/Rev.l, 21, 28. See also Plender's statement in Doc. ITLOS/PV,Oll
08/Rev.l,20-26.
See the statement of Lowe in Doc. ITLOS/PV.Ol/07/Rev.l, 8-12.
Ibid.
262
Max Planck UNYB 6 (2002)
from those under the Convention" and that the application of international law rules on interpretation of treaties to identical or similar provisions of different provisions "may not yield the same results, having
regard to, inter alia, differences in the respective contexts, objects and
purposes, subsequent practice of parties and travaux preparatoires."338
The United Kingdom also argued that the requirements of article
283 of the Convention had not been satisfied , since the correspondence
between Ireland and the United Kingdom did not amount to an exchange of views within the meaning of that article on the dispute said to
have arisen under the Convention.P? This was contested by Ireland. It
appears that there was an air of artificiality in the United Kingdom's
position, expressed repeatedly in the letters exchanged with Ireland,
that the United Kingdom was unable to understand why the Irish Government considered it to be in breach of its international obligations;
the fact that the United Kingdom did not agree with the Irish contention was a different matter. On the basis of the correspondence exchanged between the parties, starting with Ireland's letter of 23 December 1999, and having regard to Ireland's assessment that the United
Kingdom was unwilling to suspend the commissioning of the MOX
plant pending an exchange of views and that consequently deadlock had
been reached.r'? the Tribunal declared that a State Party was not obliged
to continue with an exchange of views when it concluded that "the possibilities of reaching agreement [had] been exhausted."341 This should
not be interpreted to mean that the Tribunal would treat article 283 to
be an empty formality, to be dispensed with at the whims of a disputant. Like any international obligation, the obligation arising under article 283 must also be discharged in good faith ,342 and it is the duty of the
Tribunal to examine whether that is being done. The Tribunal considered that the provisions of the Convention invoked by Ireland appeared
to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal might be founded . For the above reasons, the Tribunal found that
338 See paras 49 to 53 of the Order of 3 December 2001. The foundation for
the logic of these statements was laid in the Southern Bluefin Tuna Cases,
as may be seen from the Tribunal's Order of 27 August 1999, paras 46-51 .
339 See the Written Response of the United Kingdom, paras 5-7.
340 Seethe statement of Lowe in Doc. ITLOS/PV.01/09/Rev.1, 13-17.
341 Seepara. 60 of the Order of 3 December 2001. For a similar declaration in
the Southern Bluefin Tuna Cases, see the Order of 27 August 1999, para.
60.
342 Seealso the statement of Lowe in Doc. ITLOS.PV.01l09/Rev.1, 16.
Chandrasekhara Rao, ITLOS: The First SixYears
263
the arbitral tribunal would prima facie have jurisdiction over the dispute.
It is also a requirement of article 290, para. 5 of the Convention that
provisional measures may not be prescribed unless "the urgency of the
situation so requires;" the urgency must be such that the measures involved cannot wait until an arbitral tribunal has been constitured.Y'
Though not expressly stated in article 290, para. 5 of the Convention, it
is also a requirement of that provision that provisional measures may
only be prescribed if, as specified in article 290, para. 1 the court or tri- .
bunal considers them "appropriate under the circumstances to preserve
the respective rights of the parties to the dispute or to prevent serious
harm to the marine environment, pending the final decision. "344 In the
MOX Plant Case, the question was whether the commissioning of the
MOX plant on or around 20 December 2001 would of itself constitute a
critical event such as to warrant the prescription of provisional measures before the Annex VII arbitral tribunal could act.
At the outset, in response to the Irish contention that the commissioning of the plant was "in practical terms, itself a near-irreversible
step" and that it would not be "possible to return to the position that
existed before the commissioning of the MOX plant simply by ceasing
to feed plutonium into the system,"345 the United Kingdom replied that
neither the commissioning of the MOX plant nor the introduction of
plutonium into the system was irreversible, although decommissioning
would present the operator of the plant with technical and financial
difficulties if Ireland were to be successful in its claim before the Annex
VII arbitral tribunal .r" Similarly, in response to the Irish contention
that the commissioning of the MOX plant would increase the transport
343 Article 89 of the Rules also provides that a request for the prescription of
provisional measures under article 290 para. 5 of the Convention shall also
indicate "the urgency of the situation."
344 The legal position is made explicit in article 89 para. 3 of the Rules, which
provides:
The request [for provisional measures] shall be in writing and specify the
measures requested, the reasons therefore and the possible consequences, if
it is not granted, for the preservation of the respective rights of the parties
or for the prevention of serious harm to the marine environment.
345 See the Request, 61-62.
346 See the Written Response of the United Kingdom, 17. Due account of this
reply was taken by the Tribunal in para. 74 of the Order of 3 December
2001. Seealso the statement of Plender in Doc. ITLOS/PV.01l08/Rev.1, 28.
264
Max Planck UNYB 6 (2002)
by sea of radioactive materials to and from Sellafieldv" unless the
United Kingdom were to enter into an understanding with Ireland in
relation to movements.r'" the United Kingdom assured Ireland that
"there [would] be no additional marine transports of radioactive material either to or from Sellafield as a result of the commissioning of the
MOX plant," that "there [would] be no export of MOX fuel from the
plant until summer 2002" and that "there [was] to be no import to the
THORP plant of spent nuclear fuel pursuant to contracts for conversion to the MOX plant within that period either" and clarified that the
word "summer" should be read as "October." The assurances given by
the United Kingdom in this regard have been placed on record by the
Tribunal.Y? The Tribunal also noted the readiness of the United Kingdom to reach agreement with Ireland on the constitution of the Annex
VII arbitral tribunal "within a short space of time ."350 The rival contentions of the parties will have to be appreciated in the light of the above.
In the main, the Irish contention was that that its rights fell into
three categories: (1) the right to ensure that the Irish Sea would not be
subject to additional radioactive pollution; (2) the right to have the
United Kingdom cause to be prepared a proper and up-to-date and
complete environmental impact assessment on the MOX plant and on
associated international movements of nuclear material; and (3) the
right to have the United Kingdom cooperate with Ireland on the protection of the semi -enclosed Irish Sea and to coordinate in the promotion of activities. It was stated that each of these rights would be fully
engaged by the commissioning of the MOX plant and that, if the commissioning occurred, the exercise of each right would be "irretrievably
prejudiced on Ireland's behalf. "351 Ireland pointed out that its first right
arose under arts 192, 194,207 and 212 of the Convention. It was stated
that radionuclides would be deliberately discharged from the MOX
plant into the Irish Sea and into the atmosphere and that they would
reach the marine environment of the Irish Sea and Ireland; moreover,
347 For the exposition of this position, see the statement of Fitzsimons in Doc.
ITLOS/PV.01/09/Rev.1,7.
348 Seethe statement of Sands in Doc. ITLOS/PV.01lRev.1, 12.
349 See the Order of 3 December 2001, paras 78 and 79. See also the statement
of Plender in Doc. ITLOS/PV.01/09lRev.1, 26.
350 See the Order of 3 December 2001, para. 77. See also the Written Response
of the United Kingdom, 5.
351 See the statement of Sands in Doc. ITLOS/PV.01l06/Rev.1, 26. See also the
Request, 27.
Chandrasekhara Rao, ITLOS: The First Six Years
265
additional discharges of radio nuclides would also be made into the Irish
Sea from the THORP plant as a direct result of the commissioning and
operation of the MOX plant, though it was not known to Ireland in
what quantities. It was also added that, beyond these two sources, there
were potentially other releases from the MOX plant, firstly by reason of
accident and, secondly, by reason of terrorist acts.352 It was claimed that
article 194 of the Convention required the United Kingdom not to
authorize any new activities which would or could lead to any increase
in concentrations of radionuclides into the Irish Sea, where the effects
would be irreversible and could not be compensated monetarily.P!
When dealing with ultra-hazardous substances, the precautionary principle, or prudence and caution, militated decisively in favour of provisional measures .P" And, if the possibility could not be excluded that the
Annex VII arbitral tribunal might find in favour of Irish claims, there
would be compelling grounds for prescribing provisional measures.W
Ireland also stated that the "European Parliament's report" of 20
August 2001 furnished the evidence in relation to harm and damage and
particularly in relation to the irrevers ible effects of the discharges into
the Irish Sea warranting the prescription of pro visional measures.P" It
further asserted that provisional measures were prescribable if the Tribunal could not exclude the possibility that damage to Ireland might be
shown to be caused by the deposition on Ireland's territory of radioactive fall-out result ing from the operation of the MOX plant and to be
irreparable.
Ireland stated that its second right arose under article 206 of the
Convention, by which it was entitled to claim that the operation of the
MOX plant should not be authorized until a revised environmental
statement for the MOX plant had been issued, taking into account the
current environmental standards, the risk of potential effects by terrorist acts and the potential effects of the operation of the MOX plant on
the Irish Sea, including the additional discharges from THORP.357
Ireland claimed that its third right arose on the basis of arts 123 and
197 of the Convention, whi ch dealt with cooperation between States
bordering semi-enclosed seas and cooperation on a regional basis for
352
353
354
355
356
357
See the statement of Sands, ibid., 27.
Ibid .
Ibid., 30.
Ibid. , 29.
Ibid, 30.
Ibid., 31.
266
Max Planck UNYB 6 (2002)
the protection and preservation of the marine environment.P" It maintained that the right of cooperation had the following three elements:
first, the right to be notified about the essential details of the MOX
plant; second, the right to have the United Kingdom respond in a
timely and substantive fashion to the Irish request for information and
assistance; and, third, the right to have the Irish rights and interests
taken into account in any action the United Kingdom might take which
might have adverse implications for the sea. It asserted that the United
Kingdom had failed to fulfil its obligations under arts 123 and 197 and
that Ireland's rights would not be satisfied once the MOX plant had become operational.359 Ireland asserted that if the trend towards the concentration of radioactive pollution in the Irish Sea was to be arrested,
"the plant needs to be very carefully designed and operated, and we are
far from sure that it is."360 It was argued that the imperative was not
simply to prevent isolated acts of substantial pollution but to stop the
trend towards the further degradation of the environment by adding to
the 250 or more kilograms of plutonium from the Sellafied plant that
had already been absorbed in the sediments of the Irish Sea. Paraphrasing the Separate Opinion of Judge Treves in the Southern Bluefin Tuna
Cases,361 it was pointed out that "[e]ach step in such deterioration
[could] be seen as 'serious harm' because of its cumulative effect."362
The United Kingdom pointed out that before the Tribunal could exercise its discretion it must be shown that there was a risk of irreparable
prejudice to Ireland's rights or of serious harm to the marine environment, as required by article 290, para. 1 of the Convention; the risk of
harm occurring must be real and not hypothetical or remote .363 It was
added that provisional measures were an exceptional form of relief, that
the discretionary power of the Tribunal in this matter should rather be
used with restraint and prudence, that it was incumbent on an applicant
358 Ibid.
359 Ibid., 35. See also the statement of Lowe in Doc. ITLOS/PV.01/07/Rev.1,
17-19.
360 See the statement of Lowe, ibid.
361 Judge Treves stated: "The urgency concerns the stopping of a trend toward
such collapse. The measures prescribed by the Tribunal aimed at stopping
the deterioration in the southern bluefin tuna stock. Each step in such deterioration can be seen as 'serious harm' because of its cumulative effect towards the collapse of the stock."
362 See the statement of Lowe in Doc. ITLOS/PV.0 1I07/Rev. 1, lS .
363 See the statement of Bethlehem in Doc. ITLOS/PV.01/0S/Rev.1, 13, 16,20.
Chandrasekhara Rao, ITLOS: The First Six Years
267
seeking such measures to adduce " at least a basic foundation of credible
evidence of irreparable prejudice or serious harm."364
The United Kingdom stated that the commissioning of the MOX
plant would not of itself result in any prejudice to Ireland of any significant order, or at all, or set into motion a process that was in any way
irreversible.l'v It was pointed out that the radiation dose from the
MOX plant was so small that it had to be measured in small fractions of
microsieverts, i.e., fractions of a millionth of a sievert. 366 In support of
the argument that there was no risk of harm, reliance was placed on,
among other things , the opinion of February 1997 of the European
Commission.v" the 1999 Annual Report and Accounts of Ireland's Radiological Protection Institute,368 the BNFL Environmental Statement
of October 1993369 and the Environmental Agency's Proposed Decision
on the justification for the plutonium commissioning and full operation
of the MOX plant of October 1998.370 It was stated that the process of
manufacture of MOX fuel was a dry process and hence there was no
question of radioactive liquids being discharged or seeping into the
Irish Sea. It was claimed that the dose of radiat ion received by each
member of the team appearing in the case on behalf of Ireland in flying
to Hamburg from Dublin would be about 2500 times the dose received
364 See the Written Response of the United Kingdom, 80. See also the state365
366
367
368
369
370
ment of the Attorney General of the United Kingdom in Doc. ITLOS/PV.01/07/Rev.1 ,24.
See the statement of Bethlehem in Doc. ITLOS/PV.01l08/Rev.l, 16.
See the statement of the Attorney General of the United Kingdom in Doc.
ITLOS/PV.01l07/Rev.1,37.
For the text of this opinion, see Annex 3 to the Written Response of the
United Kingdom. This opinion states, among other things:
In conclusion, the Commission is of the opinion that the implementation
of the plan for the disposal of radioactive waste arising from the operation
of the BNFL Sellafield Mixed Oxide Fuel Plant, both in normal operation
and in the event of an accident of the magnitude considered in the general
data, is not liable to result in radioactive contamination, significant from
the point of view of health, of the water, soil or airspace of another Member State.
For the text of this Report, see Annex 15 to the Written Response of the
United Kingdom.
For the text of this Statement, see Annex 6 to the Written Response of the
United Kingdom.
For the text of this Proposed Decision, see Annex 5 to the Written Response of the United Kingdom.
268
Max Planck UNYB 6 (2002)
from the MOX plant by a member of the critical group in the course of
a whole yearY'
It was stated that the European Parliament's report which was relied
upon by Ireland as furnishing evidence of harm and damage was not, in
fact, a report by the European Parliament; it was not specifically concerned with the MOX plant and had not been published by the European Parliament but had been leaked .P? There was also nothing irremediable about the alleged violation of procedural rights invoked by Ireland. If the Tribunal were to order provisional measures along the lines
requested by Ireland, it would cause the United Kingdom a potential
loss of hundreds of millions of pounds and threaten the long-term viability of the MOX plant.V'
It was argued that the question was not, as the Irish contended,
whether the possibility of damage could be excluded, for that would require the United Kingdom to prove a negative. It was stated that,
whereas it had adduced evidence to establish that the risk of pollution,
if any, from the operation of the MOX plant would be infinitesimally
small, there was nothing on Ireland's side of the equation.V" It was
pointed out that the Tribunal's Order in the Southern Bluefin Tuna
Cases was not relevant in this case, since there was no evidence of the
MOX plant contributing to further contamination of the Irish Sea and
that discharges from Sellafield had reduced very significantly indeed
since the 1970s. Further, the precautionary principle, or prudence and
caution, had no application since Ireland had failed even to adduce evi-
371
372
373
374
See the statement of Plender in Doc. ITLOS/PV.01/08/Rev.1, 28.
See the statement of the Attorney General of the United Kingdom in Doc.
ITLOS/PV.01/07/Rev.1 , 23; the statement of Plender in Doc. ITLOSI
PV.01l08/Rev.1, 29. According to the press release of 30 October 2001 by
the Chairman of the STOA Panel, the report was a study prepared by an
external contractor in the context of the STOA Workplan 2000. The STOA
Panel decided to request the opinion of independent experts after discussing the concerns expressed by some members of the European Parliament
in relation to the possible lack of objectivity of the study. Even if the study
had been published, such publication would not have meant endorsement
of its contents either by members of the STOA Panel or the European Parliament. The Chairman of the STOA Panel stated that the contractor had
broken the confidentiality clause in its contract with the European Parliament by making public parts of the study prior to publication.
See the statement of the Attorney General of the United Kingdom in Doc.
ITLOS/PV.01l07/Rev.1, 22.
Ibid., 17.
Chandrasekhara Rao, ITLOS: The First SixYears
269
dence of uncertainty, let alone evidence of a real risk of imminent and
serious harm.I"
Based on the evidence placed on record by the parties and taking
into account the assurances given by the United Kingdom, the Tribunal
was apparently not satisfied that the manufacture of MOX would present significant risks for the Irish Sea or its marine environment in the
short period before the constitution of the Annex VII arbitral tribunal,
if the authorization of the MOX plant of 3 October 2001 was not immediately suspended. Accordingly, the Tribunal did not find that the
urgency of the situation demanded the prescription of the "provisional
measures requested by Ireland. "376 However, it considered that the
duty to cooperate was a fundamental principle in the prevention of
pollution of the marine environment under Part XII of the Convention
and general international law and that rights arose therefrom which the
Tribunal might consider appropriate to preserve under article 290 of the
Convention. It further considered that "prudence and caution" required that both parties cooperate in exchanging information concerning risks or effects of the operation of the MOX plant and in devis ing
ways to deal with them 377 and that Ireland and the United Kingdom
"should" each ensure that no action was taken which might aggravate
or extend the dispute submitted to the Annex VII arbitral tribunal.V''
The Tribunal prescribed, pending a decision by the Annex VII arbitral
tribunal, the following provisional measure, under article 290, para. 5 of
the Convention:
Ireland and the United Kingdom shall cooperate and shall, for this
purpose, enter int o consultations forthwith in order to :
(a) exchange further information with regard to possible consequences for the Irish Sea arising out of the commissioning of the
MOX plant;
(b) monitor risks or the effects of the operation of the MOX plant
for the Irish Sea;
(c) devise, as appropriate, measures to prevent pollution of the marine environment which might result from the operation of the
MOXplant.
375
376
377
378
See the statement of Bethlehem in Doc. ITLOS/PV.01/08/Rev.1, 12.
See para. 81 of the Order of 3 December 2001.
See para. 84 of the Order of 3 December 2001.
See para. 85 of the Order of 3 December 2001.
270
Max Planck UNYB 6 (2002)
There are certain unexplained but implicit premises in the Order. The
Tribunal's refusal to prescribe provisional measures as requested by
Ireland obviously related to the so-called substantive right invoked by
Ireland to ensure that the Irish Sea would not be subject to additional
radioactive pollution on account of the commissioning of the MOX
plant. However, it appears that, in the opinion of the Tribunal, the requirement of urgency was satisfied in relation to the rights arising out
of the duty to cooperate - the so-called procedural rights - which it
sought to preserve, for there was no other basis for the prescription of
provisional measures under article 290, para. 5 of the Convention. It
may not be illogical to infer from the Order that the Tribunal did not
consider that the provisional measure it prescribed would necessarily
lead to the suspension of the authorization of the MOX plant.
The Order seems to be founded on the premise that the measures
prescribed underlined a sense of urgency. The cooperation prior to the
commissioning of the MOX plant and the cooperation afterwards may
not be placed on the same footing; the former, for instance, may contribute to the promotion of several options, including temporary suspension of the commissioning of the plant; withdrawal of the case filed
against the United Kingdom; and the enunciation of measures with the
cooperation of Ireland that would minimize future risk, if any, from the
operation of the plant. Though these options may still be available in
future, in the field of protection and preservation of the marine environment, especially among States bordering a semi-enclosed sea, what
needs to be done today should not be put off until tomorrow; otherwise, the potential of the right arising out of the duty to cooperate may
never be attained and something is irretrievably lost. This then, it appears, constitutes the raison d'etre of the Order of the Tribunal and the
link between what was prescribed and the requirements for the prescription of provisional measures in article 290, para. 5 of the Convention.
3. The M/V "Saiga" (No.2) Case, Judgment
The case concerns the arrest on 28 October 1997 of the Saiga, an oil
tanker flying the flag of Saint Vincent and the Grenadines, and its crew,
by the customs authorities of Guinea outside its EEZ. The Saiga had
been engaged in selling gas oil as bunker and occasionally water to
fishing and other vessels off the coast of West Africa. On 27 October
1999, the Saiga supplied gas oil to three fishing vessels, two of which
Chandrasekhara Rao, ITLOS: The First Six Years
271
were flying the flag of Senegal and one the flag of Greece, at a point approximately 22 nautical miles from Guinea's island of Alcatraz. All
three fishing vessels were licensed by Guinea to fish in its EEZ. On 28
October 1997, at a point south of the southern limit of Guinea's EEZ,
the Saiga was attacked by a Guinean patrol boat. Officers from that
boat and another Guinean patrol boat subsequently boarded the Saiga
and arrested it. On the same day, the ship and its crew were brought to
Conakry, Guinea, where its Master was detained. Between 10 and 12
November 1997, the cargo of gas oil on board the ship was discharged
on the orders of the Guinean authorities. In the M/V "Saiga " (No.2)
Case, the Tribunal delivered its first Judgment on the merits on 1 July
1999, thus bringing to a close a dispute that began with Guinea's arrest
of the vessel, M/V "Saiga ", and its crew.
The jurisdiction of the Tribunal to deal with the dispute was not
contested by the parties in view of their 1998 Agreement transferring
the dispute to the Tribunal. In response to a number of objections from
Guinea to the admissibility of the claims advanced by Saint Vincent and
the Grenadines, the latter contended that the former did not have the
right to raise such objections, since Guinea reserved only its right under
the 1998 Agreement to object to the jurisdiction of the Tribunal. The
Tribunal observed that this Agreement did not deprive Guinea of its
"general right to raise objections to admissibility" and that the timelimit in article 97, para. 1 of the Rules did not apply to objections to jurisdiction or admissibility which were not requested to be considered
before any further proceedings on the merits.V?
The Judgment then dealt with the objections to the admissibility of
the claims of Saint Vincent and the Grenadines before entering into the
merits of the case. The Tribunal rejected the objections to the admissibility of the claims of Saint Vincent and the Grenadines based on
Guinea's contentions that the Saiga was not registered in Saint Vincent
and the Grenadines at the time of its arrest, that there was no genuine
link between Saint Vincent and the Grenadines and the Saiga at the time
of its arrest, and that local remedies had not been exhausted.
On the question of whether the Saiga was registered at the time of
its arrest, Guinea contended that the Saiga had been registered provi379
See paras 51 and 53 of the of judgment of 1 July 1999. Under the 1998
Agreement, the Parties agreed that proceedings before the Tribunal "shall
comprise a single phase dealing with all aspects of the merits (including
damages and costs) and the objection as to jurisdiction." For the text of the
Agreement, see para. 4 of the Judgment.
272
Max Planck UNYB 6 (2002)
sionally on 12 March 1997 as a Saint Vincent and Grenadines ship under section 36 of the Merchant Shipping Act of 1982 of Saint Vincent
and the Grenadines, that the Provisional Certificate of Registration issued to the Saiga on 14 April 1997 stated that it "expire]d) on 12 September 1997", that the Saiga had been arrested by the Guinean officers
on 28 October 1997, and that, consequently, Saint Vincent and the
Grenadines, not being the flag State of the Saiga at the relevant time,
was not competent to present its claims.38o Rejecting this argument, the
Tribunal considered that the nationality of a ship was "a question of
fact to be determined, like other facts in dispute before it, on the basis
of evidence adduced by the parties."381 In support of its holding that
the registration of the Saiga had not been extinguished at the relevant
time, the Tribunal relied upon three bases: (i) provisions of the Merchant Shipping Act of 1982, (ii) certain "indications of Vincentian nationality on the ship or carried on board", and (iii) the consistent conduct of Saint Vincent and the Grenadines, which showed that it had at
all times material to the dispute operated on the basis that the Saiga was
a ship of its nationality, and the failure of Guinea to question the assertion of Saint Vincent and the Grenadines that it was the flag State of the
Saiga when it had had every reasonable opportunity to do so and its
other conduct in the case. It found, on the basis of the "evidence" before it, that Saint Vincent and the Grenadines had discharged "the initial
burden" of establishing that the Saiga had Vincentian nationality at the
time it was arrested by Guinea and that Guinea had failed to discharge
the burden of proving its contention that the ship was not registered in
or did not have the nationality of Saint Vincent and the Grenadines at
the time of its arrest. The Tribunal also added that "in the particular circumstances of this case, it would not be consistent with justice if the
Tribunal were to decline to deal with the merits of the dispute."382
Judges Mensah, Wolfrum, Chandrasekhara Rao, Warioba and
Ndiaye considered that the Saiga was not registered with Saint Vincent
and the Grenadines at the time of its arrest. Their general line of reasoning ran as follows. Article 91 of the Convention provides:
1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the
right to fly its flag. Ships have the nationality of the State whose flag
380 See paras 57 and 58 of theJudgment.
381 See para. 66 of theJudgment.
382 See paras 67-73 of theJudgment.
Chandrasekhara Rao, ITLOS: The Fir st Six Years
273
they are entitled to fly. There must exist a genuine link between the
State and the ship.
2. Every State shall issue to ships to which it has granted the right
to fly its flag documents to that effect.
The Convention thus expressly provides that a State which has granted
a ship the right to fly its flag is required to issue "documents to that effeet." The nature of these documents is generally specified in the laws
and regulations of a State. To answer the question as to whether a ship
is registered at any given time, one has to examine the documents, if
any, issued to that ship.
If this is so, the Tribunal's reliance on indications of Vincentian nationality on the ship or carried on board as constituting evidence of
Saiga's Vincentian nationality would appear to be misplaced. The reliance on the provisions of the Merchant Shipping Act would appear to
be equally misplaced. Under this Act, a merchant ship acquires Vincentian nationality through registration and consequentially the right to fly
the Vincentian flag. In the present case a document in the form of a
provisional certificate of registration granting the right to fly the Vincentian flag had been issued under the Act but was not in force at the
time the Saiga was arrested by Guinea and no further certificate had
either been applied for or issued.
Judges Mensah, Wolfrum and Chandrasekhara Rao, in their Separate
Opinions, while holding that Saint Vincent and the Grenadines was not
the flag State at the relevant time, were not prepared to hold that on
that account Saint Vincent and the Grenadines did not have the legal
standing to bring the dispute to the Tribunal. Judge Mensah was of the
opinion that it would not be consistent with justice if the Tribunal were
to decline to deal with the merits of the dispute, having regard to the
particular circumstances of the case. Judges Wolfrum and Chandrasekhara Rao held that, having failed to challenge the status of Saint Vincent
and the Grenadines as the flag State of the Saiga at all material times
when it ought to have done so to protect its rights, Guinea was precluded from doing so at that stage. Guinea did not raise the question of
the ship's lack of registration at the time when it seized the ship's papers
following the arrest of the Saiga. In the decisions of the judicial
authorities of Guinea, Saint Vincent and the Grenadines was stated to
be the flag State of the Saiga. Guinea also accepted the bank guarantee
from Saint Vincent and the Grenadines for the release of the Saiga.
Principles of fairness clearly demanded that a State not be allowed to act
inconsistently, especially when it caused prejudice to others. Judges
Warioba and Ndiaye wrote Dissenting Opinions on the ground that ,
274
Max Planck UNYB 6 (2002)
since the Saiga did not have the nationality of Saint Vincent and the
Grenadines at the time of its arrest, they would uphold the Guinean
objection to the admissibility of the claims of Saint Vincent and the
Grenadines.
Addressing the Guinean contention that there was no genuine link
between the Saiga and Saint Vincent and the Grenadines, and that, consequently, Guinea was not obliged to recognize the claims of Saint Vincent and the Grenadines in relation to the Saiga, the Tribunal concluded
that the purpose of the provisions of the Convention on the need for a
genuine link between a ship and its flag State was to secure more effective implementation of the duties of the flag State, and not to establish
criteria by reference to which the validity of the registration of ships in
a flag State might be challenged by other states.383 The Tribunal was
therefore not strictly required to investigate the question as to whether
there was a genuine link between the ship and Saint Vincent and the
Grenadines . Nevertheless, it found that the evidence adduced by
Guinea was not sufficient to justify its contention that there was no
genuine link between the ship and Saint Vincent and the Grenadines at
the material time. 384 In general, there is much to be said in support of
the principle that judicial bodies should not say more than what is
strictly required for the disposal of a case.
The Tribunal then proceeded to deal with the Guinean objections to
the admissibility of the Vincentian claim based on the non-exhaustion
of local remedies. Guinea contended that Saint Vincent and the Grenadines was not competent to institute its claims, since the persons who
were affected by Guinean actions had not exhausted the local remedies
in Guinea, as required by article 295 of the Convention.Vt The Tribunal
found that the rights which Saint Vincent and the Grenadines claimed
had been violated - the right to freedom of navigation, the right not to
be subjected to the customs and contraband laws of Guinea, the right
not to be subjected to unlawful hot pursuit, etc. - were all rights that
belonged to Saint Vincent and the Grenadines under the Convention
and could not be described as breaches of obligations concerning the
383
384
385
See para. 83 of the Judgment.
See para. 87 of the Judgment.
Article 295 provides:
Any dispute between States Parties concerning the interpretation or application of this Convention may be submitted to the procedures provided for
in this section only after local remedies have been exhausted where this is
required by international law.
Chandrasekhara Rao, ITLOS: The First Six Years
275
treatment to be accorded to aliens.386 It added that damage to persons
involved in the operation of the ship arose from those violations of the
rights of Saint Vincent and the Grenadines. Accordingly, the Tribunal
concluded that the claims in respect of such damage were not subject to
the rule that local remedies must be exhausted. W It further held that,
even if it accepted Guinea's contention that some of the claims made by
Saint Vincent and the Grenadines in respect of natural or juridical persons did not arise from direct violations of the rights of Saint Vincent
and the Grenadines, the rule that local remedies must be exhausted did
not apply in the present case, since there was no jurisdictional connection between the persons suffering damage in respect of whom Saint
Vincent and the Grenadines had made claims and Guinea, i.e., the state
responsible for the wrongful act which had caused the damage. 388 The
Judgment recorded that "(tjhe parties agree" that a prerequisite for the
application of the rule on local remedies was that there must be such a
jurisdictional connection. A jurisdictional link was denied on the basis
of the Tribunal's finding that, under the Convention, Guinea was not
entitled to apply its customs laws in its customs radius which included
parts of the exclusive economic zone.
The Tribunal's view that the case involved all direct violations of the
rights of Saint Vincent and the Grenadines may be seen as diminishing
the efficacy of article 295 of the Convention. The question of freedom
of navigation was not directl y at issue. The main question in the case
was whether Guinea had stopped and arrested the Saiga on 28 October
1997 in circumstances which justified the exercise of the right of hot
pursuit in accordance with the Convention. As will be seen later, the
Tribunal answered this question in the negative. Para. 8 of article 111 of
the Convention provides: "Where a ship has been stopped or arrested
outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or
damage that may have been thereby sustainedt.V? The word "it" in this
paragraph refers to the ship and not the flag State. It is not, therefore,
open to a flag State to contend that every wrongful exercise of the right
of hot pursuit involves direct violation of its rights rather than of those
of the ship. This is in contrast, for instance, with article 106 of the Convention, which deals with liability for seizure of a ship or aircraft with-
386
387
388
389
See paras 97 and 98 of the Judgment.
Ibid.
See para. 100 of the Judgment.
Emphasis added.
276
MaxPlanckUNYB 6 (2002)
out adequate grounds. The article provides that in such a case "the State
making the seizure shall be liable to the State the nationality of which is
possessed by the ship or aircraft for any loss or damage caused by the
seizure." Article 106, unlike article 111, thus provides that it is the flag
State which is entitled to claim relief for any loss or damage caused by
the wrongful seizure. When article 111, para. 8 states that it is the ship
which is to be compensated, it appears that all interests directly affected
by the wrongful arrest of a ship are entitled to be compensated for any
loss or damage that may have been sustained by such arrest . It is also
significant that the Judgment, while specifying the total amount of
compensation to be paid to Saint Vincent and the Grenadines, nevertheless found it necessary to indicate the sums, out of that total amount,
payable to the owner of the ship, its charterer and members of the crew;
no compensation was awarded to Saint Vincent and the Grenadines directly"? Since this is a case involving a ship's entitlement to compensation in principle, it would have been appropriate to hold that local
remedies in Guinea were in principle required to be exhausted by the
persons affected by the arrest of the Saiga before Saint Vincent and the
Grenadines could bring their claims to this Tribunal. 391 However, in the
present case, no connection appeared to exist between such persons and
the territory or jurisdiction of Guinea. 392 In this view of the matter, the
Guinean objection based on local remedies appears to have been rightly
rejected by the Tribunal.
Guinea also contended that certain claims of Saint Vincent and the
Grenadines could not be entertained by the Tribunal because they related to violations of the rights of persons who were not nationals of
Saint Vincent and the Grenadines.l'" While rejecting this objection
based on the nationality of claims, the Tribunal relied upon the provisions of the Convention concerning the duties of flag States regarding
ships flying their flag,394 which make no distinction between nationals
and non-nationals of a flag State but consider a ship as a unit, as regards
390 Seepara. 183(12), read together with para. 175 of the Judgment.
391 See also the Separate Opinions of Judges Chandrasekhara Rao and Wolfrum and the Dissenting Opinions of Judges Warioba and Ndiaye.
392 On the need for such connection, see generally CE Amerasinghe, Local
Remedies in International Law, 1990, 138-149; 1. Brownlie, Principles of
Public International Law, 5th edition 1998, 500-501.
393 Seepara. 103 of the Judgment.
394 The following articles of the Convention were cited: arts 94; 106; 110, para.
3; 111, para. 8; and 217.
Chandrasekhara Rao, ITLOS: The First Six Years
277
the obligations of the flag State with respect to the ship and the right of
a flag State to seek reparation for loss or damage caused to ships by acts
of other states and to institute proceedings under article 292 of the
Convention. The Tribunal added: "(T)he ship, every thing on it, and
every person involved or interested in its operations are treated as an
entity linked to the flag State. The nationalities of these persons are not
relevant. "395
Having upheld the legal standing of Saint Vincent and the Grenadines to bring claims in connection with the measures taken by Guinea
against the Saiga, the Tribunal examined the main charge against the
Saiga, which was that it had violated Guinean law by importing gas oil
into the customs radius of Guinea. According to Guinea, the fact that
the Saiga had violated the laws of Guinea had been authoritatively decided by its Court of Appeal and the Tribunal was not competent to
consider the question of whether the internal legislation of Guinea had
been properly applied by the Guinean authorities or courts. The Tribunal noted that from the standpoint of international law, there was
nothing to prevent it from considering the question of whether or not,
in applying its laws to the Saiga in the present case, Guinea had been
acting in conformity with its obligations towards Saint Vincent and the
Grenadines.F" Besides, in exercising their rights and fulfilling their obligations in the EEZ, States are required to have due regard to the rights
and duties of the coastal State and to comply with "the laws and regulations adopted by the coastal State in accordance with the provisions of
this Convention and other rules of international law in so far as they are
not incompatible with this Part [Part V],"397 a requirement of the Convention that empowers the Tribunal to determine the compatibility of
such laws and regulations with the Convention.
The Tribunal found no evidence in support of the Guinean contention that the laws relied upon by it provided a basis for the action taken
against the Saiga beyond the assertion that it reflected the consistent
practice of its authorities as supported by its courts. The Tribunal further added that, even if it were to be conceded that the Guinean contention was valid, Guinea had acted contrary to the Convention by extending its customs laws in the EEZ within a customs radius extending
See para. 106 of the Judgment.
In support, the Tribunal cited the Judgment of the PCIJ in Certain German
Interests in Polish Upper Silesia, Merits, judgment No.7, 1926, PClj Series
A, No.7, 19.
397 Article 58 para. 3 of the Convention.
395
396
278
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to a distance of 250 kilometres from the coast. 398 In the view of the Tribunal, except in respect of artificial islands, installations and structures,399 the Convention did not empower a coastal State to apply its
customs laws in respect of any other parts of the EEZ, The Tribunal
also rejected Guinea's justification for its actions based on its public interest, as being incompatible with the provisions of arts 58 para. 3 and
59 of the Convention.P'' Similarly, it rejected the defence based on the
so-called "state of necessity", since Guinea had failed to demonstrate to
the satisfaction of the Tribunal that the only means of safeguarding its
essential interests was to extend its customs laws to parts of the EEZ.401
The Tribunal avoided addressing the broader question of the rights of
the coastal States and other States with regard to bunkering in the
EEZ.402
The Tribunal then proceeded to hold that, since no laws of Guinea
applicable in accordance wi th the Convention had been violated by the
Saiga, no legal basis existed for the exercise of the right of hot pursuit
by Guinea in this case. It further found that the conditions for the exercise of the right of hot pursuit under article 111 of the Convention were
cumulative and that several of these conditions had not been fulfilled in
this case. No visual or auditory signals to stop had been given to the
Saiga prior to the commencement of the alleged pursuit, as required by
article 111, para. 4 of the Convention and the alleged pursuit had not
been uninterrupted, as required by article 111, para. 1 of the Convention.
Adverting to the question of force used by Guinea in the arrest of
the Saiga, the Tribunal, while noting that the Convention did not contain express provisions on this matter, observed that international law,
applicable by virtue of article 293 of the Convention, required the use
of force to be avoided as far as possible and, where force was unavoidable, it must not go beyond what was reasonable and necessary in the
circumstances and considerations of humanity must apply in the law of
398 Seeparas 127-136 of the Judgment.
399 Seearticle 60 para. 2 of the Convention.
400 Seeparas 128-131 of the Judgment.
401 See paras 133-135 of the Judgment. The Tribunal placed reliance upon the
Judgment of the IC] in Gabiileouo-Nagymaros Project (Hungary/Slovakia), judgment, IC] Reports 1997, 3 et seq., (40, paras 51 and 52).
402 See Separate Opinions of Judges Zhao, Anderson, Vukas and Laing and
Dissenting Opinion of Judge Warioba for their views on offshore bunkermg.
Chandrasekhara Rao, ITLOS: The First SixYears
279
the sea, as they did in other areas of international law.f'" It further observed that these principles had been followed over the years in law
enforcement operations at sea.404 The Tribunal found that Guinea had
used excessive force and endangered human life before and after
boarding the Saiga. Accordingly, when awarding compensation, the
Tribunal took due account of injury, pain, disability, and psychological
damage caused to officers on board the ship.
Though each party requested the Tribunal to award legal and other
costs to it, the Tribunal saw no need to depart from the general rule that
each party should bear its own costs,405 following in this respect the
well-established practice of the IC]. In the great majority of cases involving inter-State litigation, adjudication of rights and wrongs and
declaration of law may by themselves meet the ends of justice. This may
not be the case, for instance, in contractual disputes with respect to activities in the international seabed area involving mainly commercial
considerations.
It is worth noting that, whereas in the Saiga prompt release case the
Tribunal was deeply divided, in the Saiga merits case, a substantial majority of judges had no difficulty in being on the same side. Some may
consider that the manifest illegality of the Guinean action on merits had
influenced the minds of some of the judges in taking a lenient view on
the question of the registration of the Saiga. This may not, however, be
interpreted to mean that the Tribunal treats the question of registration
as a technicality or would be lax in insisting on compliance with the requirements of the Convention with regard to nationality of ships, as is
borne out by the "Grand Prince" Case.
403 See generally paras 155-159 of the Judgment.
404 The Judgment referred to: the 5.5. "I'm Alone" case (Canada v. United
States, 1935), U.N.R.LA.A, Vol. III, 1609; The Red Crusader case (Commission of Enquiry, Denmark - United Kingdom, 1962), ILR Vol. 35,485;
and article 22, para. 1(£), of the Agreement for the Implementation of the
Provisions of the United Nations Convention on the Law of the Sea of 10
December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.
405 Article 34 of the Statute provides that "Unless otherwise decided by the
Tribunal, each party shall bear its own costs." Disagreeing with the Tribunal's position on the question of costs, Judges Caminos, Yankov, Akl, Anderson, Vukas,Treves and Eiriksson made a joint declaration in which they
observed that the Tribunal should have awarded costs to Saint Vincent and
the Grenadines, as the generally successful party.
280
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4. The Swordfish Case
By way of background to Case No.7 - Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the SouthEastern Pacific Ocean (Chile/European Community) - it may be recalled that, since the parties did not accept the same procedure for the
settlement of their dispute, submission of it to arbitration in accordance
with Annex VII to the Convention became compulsory, unless the parties otherwise agreed.406 When the President of the Tribunal held consultations with the parties upon a request received from Chile for the
appointment of a member of the arbitral tribunal in accordance with
article 3, subpara. (e) of Annex VII to the Convention, it was agreed
between the parties, following the said consultations, that the dispute be
not submitted to the arbitral tribunal but be referred to a special chamber of the Tribunal to be formed in accordance with article 15, para. 2 of
the Statute on the terms agreed between the two of them . Throughout
all the aforesaid consultations, at the request of the parties, the President used his good offices to promote an understanding in this regard. 407 The parties had also conveyed their views regard ing the composition of the special chamber of the Tribunal, which the President reported to the Tribunal.v"
Having thus received the joint request of the parties to have a special
chamber formed for dealing with their dispute and their views regarding the composition of such a chamber, the Tribunal, by its Order of 20
December 2000, acceded to the request of the parties, determined the
composition of the Special Chamber and declared that the Special
Chamber as composed in the Order was duly constituted.P? By the said
Order, the Tribunal decided, among other things, that the quorum re406
407
408
409
See article 287 paras 3 and 5 of the Convention.
See letter dated 18 December 2000 from Chile addressed to the Registrar of
the Tribunal, which is recorded by the Tribunal in its Order of 20 December 2000.
See article 30 para. 2 of the Rules.
See in this regard article 15 para. 2 of the Statute and article 30 para. 3 of the
Rules. The basic framework for the Tribunal's Order was provided by Orders of the IC] on the constitution of a special chamber under Article 26,
para. 2 of the Statute of the IC]. See, for example, Frontier Dispute, Constitution of Chamber, Order of 3 April 1985, IC] Reports 1985, 6 et seq.;
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras),
Constitution of Chamber, Order of 8 May 1987, IC] Reports 1987, 10 et
seq.
Chandrasekhara Rao, ITLOS: Th e First Six Years
281
quired for meetings of the Special Chamber was to be three members of
the Special Chamber.U? made provision for making preliminary objections and for the filing of a Memorial and a Counter-Memorial by each
of the parties, decided that the Special Chamber could authorize the
presentation of a Reply and Rejoinder if it found them necessary and
reserved the subsequent procedure for further decision by the Special
Chamber.
As a general rule, by virtue of section D (arts 107 to 109) of Part III
of the Rules, proceedings before the special chambers are, subject to the
provisions of the Convention, the Statute and the Rules relating specifically to the special chambers, to be governed by the Rules applicable in
contentious cases before the Tribunal."! The parties, however, requested that the proceedings of the special chamber be governed by the
provisions contained in Part III , sections A, Band C, of the Rules and
that, in particular, any prel iminary objection should be dealt with by
the Special Chamber in accordance with the provisions of article 97,
paras 1 to 6 of the Rules; the parties thus wanted section D and article
97, para. 7 of the Rules not to apply.412 The Rules permit the parties to
jointly propose modifications or additions to the Rules contained in
Part III dealing with procedure, which may be applied by the Tribunal
or by a chamber if the Tribunal or the chamber considers them appropriate in the circumstances of the case. Since the Tribunal agreed to the
modifications sought by the parties, it made provision for certain aspects of procedure in line with the agreement of the parties. 413
By separat e letters dated 9 March 2001, the parties informed the
President of the Special Chamber that they had reached a provisional
arrangement concerning the dispute and requested that the pro ceedings
before the Chamber be suspended. In their letters , each party reserved
its right to revive the proceedings at any time. There is, howe ver, no
provision in the Rules providing for suspens ion of the proceedings.
Further to the request of the parties, the President of the Special Cham-
4 10
411
412
413
See art icle 30 para. 3 of the Rules.
See article 107 of the Rules.
Article 97 para. 7 of the Rule s provides that the Tribunal shall give effect to
any agreement between th e partie s th at an objectio n submitted under para.
1 of article 97 of the Rules be heard and determined within the framework
of the merits . Thus, the parties wanted the preliminary obj ection s to be
heard and determined befor e proceeding to the merit s of th e case.
See article 48 of the Rules. Th e Tribunal's O rder of 20 December 2000 expressly relied up on art icle 48 of the Rul es.
282
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ber, by Order dated 15 March 2001, extended the time-limit for making
preliminary objections. Under the Order, the time-limit of 90 days for
the making of preliminary objections would commence on 1 January
2004 and each party would have the right to request that the time-limit
should begin to apply from any date prior to 1 January 2004. The Order serves the same object as that underlying the request for suspension
by granting to the parties further time for taking the steps required of
them under the Tribunal's Order of 20 December 2002, thus enabling
the parties to reach a final settlement of the dispute within the extended
period. Since' the judicial settlement of international disputes is simply
an alternative to the direct and friendly settlement of such disputes
between the parties, the Tribunal is under a duty to facilitate, so far as is
compatible with its Statute and the instruments emanating from it, such
direct and friendly settlement.f"
Though the case was submitted by virtue of the agreement of the
parties, the parties were unable to present an agreed list of issues to be
decided by the Special Chamber; each party's issues were presented
separately to the Special Chamber. Swordfish is a highly migratory species listed in Annex 1 to the Convention. Article 64 of the Convention
calls for cooperation between the coastal State and other States whose
nationals fish in the region for the highly migratory species with a view
to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond
the exclusive economic zone. It appears that the dispute between Chile
and the European Community had remained unresolved for more than
ten years. The main issues presented on behalf of Chile were whether
the European Community had complied with its obligations under the
Convention, especially arts 116 to 119 thereof (conservation and management of the living resources of the high seas), to ensure conservation
of swordfish in the fishing activities undertaken by vessels flying the
flag of any of its member States in the high seas adjacent to Chile's exclusive economic zone and whether the European Community had
complied with its obligations under the Convention, in particular article 64 thereof. On behalf of the European Community, the main issue
raised was whether Chilean Decree 598, which purported to apply
Chile's unilateral conservation measures relating to swordfish on the
high seas, was in breach of, inter alia, arts 87 (freedom of the high seas),
89 (invalidity of claims of sovereignty over the high seas) and 116 to 119
414
See Free Zones of Upper Savoy and the District of Gex, Order of 19 August
1929, PCI] Series A, No . 22,5 et seq., (13).
Chandrasekhara Rao, ITLOS: The First Six Years
283
of the Convention. A further main issue submitted by the European
Community was whether "the Galapagos Agreement" of 2000 was in
consonance with, inter alia, arts 64 and 116 to 119 of the Convention.
The issues involved thus seek authoritative interpretation of the fundamental provisions of the Convention concerning highly migratory species and conservation and management of the living resources of the
high seas.
While Chile took the initiative to bring the dispute to the Tribunal,
the European Community had taken up the matter regarding the prohibition on unloading swordfish in Chilean ports with the WTO Dispute Settlement Body and requested consultations with Chile;415 such
consultations having failed to furnish a satisfactory resolution of the
matter, the European Community requested on 6 November 2000 the
establishment of a panel pursuant to article 6 of the Understanding on
Rules and Procedures Governing the Settlement of Disputes and Article
XXIII of the General Agreement on Tariffs and Trade 1994 (GATT
1994) regarding the prohibition on unloading of swordfish in Chilean
ports established on the basis of article 165 of the Chilean Fishery Law,
as consolidated by Presidential Supreme Decree 430 of 28 September
1991 and measures of conservation and management adopted pursuant
thereto, in force on the date of adoption of Decree 598 of 15 October
1999 and extended by that Decree to the population of swordfish in areas of the high seas.416 The European Community maintained that
Community fishing vessels operating in the South-East Pacific were not
allowed to unload their fish in Chilean ports either to land them for
warehousing or to tranship them onto other vessels, that Chile made
transit through its ports impossible for swordfish and that the abovementioned measures were inconsistent with arts V and XI of GATT
1994. Later, in a communication of 23 March 2001 addressed to the
Chairman of the Disputes Settlement Body, the European Community
stated that it had come to a provisional arrangement with Chile concerning its dispute with Chile by virtue of which they had agreed to
"suspend the process for the constitution of the Panel" and that, however, the European Community maintained the right to revive the proceedings at any time.f!?
When the Tribunal was seized of the Swordfish Case, the prospect
of two dispute settlement procedures running in parallel, one under the
415 See WTO Doc. WTIDS 193/1 of 26 April 2000.
416 See WTO Doc. WT/DS 193/2 of 7 November 2002.
417 See WTO Doc. WT/DS 193/3 of 6 April 2001.
MaxPlanck UNYB 6 (2002)
284
WTO, the other under the Convention, in respect of what some commentators consider to be "the same dispute", raised the question: can
tribunals really confine themselves in practice to the specific aspects of a
dispute by virtue of which they have jurisdiction over it, without their
proceedings and judgments encroaching upon the proper preserve of
other tribunals concerned with different aspects of the same case?418
These and other related issues may not be answered in the immediate
future, since the parties have suspended further judicial proceedings
before the Special Chamber of the Tribunal and the WTO Dispute Settlement Body.
5. The "Chaisiri Reefer 2" Case
On 3 July 2001, an application under article 292 of the Convention was
filed on behalf of Panama against Yemen for the prompt release of the
Chaisiri Reefer 2 (a vessel flying the flag of Panama), its cargo and crew.
The application was entered in the List of cases as Case No. 9 and
named the Chaisiri Reefer 2 Case. Since the Tribunal was not sitting at
the time, in accordance with article 112, para. 3 of the Rules the President, by his Order of 6 July 2001, fixed 18 and 19 July as the dates for
the hearing in the case. Arrangements were also made to bring the
judges in time to meet in Hamburg. On 12 July 2001, the parties informed the Tribunal that the vessel, its cargo and crew had been released by Yemen that very day, and that, in consequence of having
reached a settlement, the parties had agreed to discontinue the proceedings in accordance with the provisions of article 105, para. 2 of the
Rules; pursuant to the same provisions, the parties further requested the
Tribunal to append to its order for the removal of the case the notes exchanged between the parties setting out the terms of the settlement. The
President's Order of 13 July 2001 was made in accordance with the request of the parties and the case was accordingly removed from the List
of cases. This is a case in which, it would appear, the availability of relief
by the Tribunal helped promote an out-of-court settlement.
418 SeeV. Lowe,"The International Tribunalfor the Law of the Sea: Survey for
2000", The International Journal of Marine and Coastal Law 16 (2001),
569 et seq.
Chandrasekhara Rao, ITLOS: The First Six Years
285
IX. Extra-Judicial Activities
The Convention requires the President of the Tribunal to assume an
extra-judicial function (the function not being an exercise of jurisdic tion) in connection with the constitution of an arbitral tribunal under
Annex VII. Article 1 of Annex VII reads as follows:
Subject to the provisions of Part Xv, any party to a dispute may
submit the dispute to the arbitral procedure provided for in this
Annex by written notification addressed to the other party or parties to the dispute. The notification shall be accompanied by a
statement of the claim and the grounds on which it is based.
Article 3 of the Annex provides for the constitution of an arbitral tribunal. Subpara. (b) of this article calls upon the party instituting the proceedings to appoint one member of the arbitral tribunal and to include
the appointment in the notification referred to in article 1 of the Annex.
Subpara. (c) calls upon the other party to the dispute to appoint, within
30 days of receipt of the notification referred to in article 1 of the Annex, one member of the arbitral tribunal. If the appointment is not so
made, the party instituting the proceedings is allowed, within two
weeks after expiry of that period, to request that the appointment be
made in accordance with subpara. (e) of article 3 of the Annex. Subpara.
(e) authorizes the President of the Tribunal to make the appointment
within a period of 30 days of the receipt of the request, in consultation
with the parties.
On 22 December 1997, the President was requested by Saint Vincent
and the Grenadines to appoint an arbitrator pursuant to article 3, subparas (c) and (e), of Annex VII to the Convention. The arbitrator was to
sit on the arbitral tribunal to be constituted to consider the case submitted by Saint Vincent and the Grenadines against Guinea in connection with the detention of the Saiga and its crew. The President held
consultations with the parties and addressed letters to experts on the list
maintained by the Secretary-General of the United Nations pursuant to
Annex VII to the Convention, seeking to ascertain their availability to
be considered for appointment as arbitrators. Action was discontinued
following the agreement by the Government of Saint Vincent and the
Grenadines and the Government of Guinea to submit the case to the
Tribunal.tl?
419
See the Tribunal's Yearbook 1998, Vol. 2, 41.
286
Max Planck UNYB 6 (2002)
On 23 August 2000, the President was requested by Chile to appoint an arbitrator pursuant to art icle 3 subparas (c) and (e) of Annex
VII to the Convention. The arbitrator was to sit on the arbitral tribunal
to be constituted to consider the dispute between Chile and the European Community concerning swordfish stocks in the South-Eastern
Pacific Ocean. The President held consultations with the parties and
addressed letters to experts on the list maintained by the SecretaryGeneral of the United Nations pursuant to Annex VII of the Convention, seeking to ascertain their availability to be considered for appointment as arbitrators. However, following the agreement by the
Government of Chile and the European Community to submit the case
to a special chamber of the Tribunal, the President took no further action on the request made by Chile .420
There is one issue connected with the President's function under
Annex VII that merits attention here. Difficulty arises when there is
disagreement between the parties on the applicability of article 3, subparas (c) and (e) of Annex VII. Is it open to a party to argue that the
President should not appoint a member of the arbitral tribunal, since,
according to that party, the notification addressed to it by the party instituting the proceedings is not a "notification" within the meaning of
article 1 of Annex VII or that the notification has not been accompanied
by materials which, for the purposes of article 1, could be treated as a
"statement of the claim and the grounds on which it is based"? Is it
open to a party to contend that, since article 1 of Annex VII starts off
with the words "Subject to the provisions of Part XV", submission of a
dispute to the arbitral procedure would be premature until such time as
the obligations established under Part XV, especially under such provisions as article 283 of the Convention, have been exhausted? Is it open
to the party approaching the President with the request to argue that,
once it is shown that he had given written notification of the submission of the dispute to the other party, the President has no choice but to
make the appointment? This argument underlines the point that the
object of article 3, subparas (c) and (e), should not be frustrated by a
refusal of one party to cooperate in setting up the arbitral tribunal and
that the merits of any arguments regarding non-compliance with the
requirements of article 1 could be gone into only by the arbitral tribunal. These and related issues arose in the Chile-European Community
Case, but a decision on them was not required since the parties decided
not to proceed with arbitration.
420
See SPLOS/63 of 6 April 2001, 10.
Chandrasekhara Rao, ITLOS: The First SixYears
287
Other international agreements also provide for requests to the Tribunal for the appointment of arbitrators for deciding disputes arising
under the agreements in question. Under the Agreement on Free Transit through the Territory of Croatia to and from the Port of Ploce,
Through the Territory of Bosnia and Herzegovina at Neum of 22 November 1998, a commission composed of seven members is to be established to supervise, monitor, interpret and arbitrate the implementation
of the Agreement. Pursuant to the Agreement, the parties requested the
Tribunal to nominate the seventh member of the commission to serve as
president of the commission. The Tribunal nominated Judge Thomas A.
Mensah, the then President of the Tribunal, to serve as the seventh
member.F!
While the Convention imposes a duty on the President to exercise
the extra-judicial function referred to above,422 there is no such obligation in respect of extra-judicial functions conferred under other instruments and, in such cases, the Tribunal or its President may undertake
such functions depending upon the circumstances of each case. It is obvious that requests received from States and international organizations
will be treated with the respect due to them. In any event, the exercise
of such functions should be "compatible with the standing" of the Tribunal or, as the case may be, of its Presidenr'P and be justified by "the
general interest which it serves" and not involve any departure from the
restrictions imposed on the Tribunal "by its judicial character."424
Before leaving this topic, attention may be drawn to a practical
problem arising out of the President's function of appointing arbitrators
under Annex VII to the Convention. It is a requirement that the President shall make the appointments from the list of arbitrators nominated
by States Parties under article 2 of Annex VII.425 Further, the members
421 SeeTribunal's Yearbook 1998, 41. See also article 14 (2)(b) of the Protocol
on the Privileges and Immunities of the International Seabed Authority
(1989); Annex II to the Convention on the Conservation and Management
of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
(2002); article 48 of the Agreement between the International Seabed
Authority and the Government of Jamaica Regarding the Headquarters of
the International SeabedAuthority.
422 Subpara. (e) of article 3 of Annex VII states that the President "shall make
the necessaryappointments."
423 For a discussion of relevant considerations, see S. Rosenne, The Law and
Practice of the International Court, 1920-1996, Vol. III, 1688-1689.
424 SeeHudson, see note 37, 434.
425 Seearticle 3 subpara. (e).
288
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so appointed should necessarily be of different nationalities and not be
in the service of, ordinarily resident in the territory of, or nationals of,
any of the parties to the dispute. As of June 2002, eighteen States Parties
had nominated arbitrators. Of these Parties, six are developing countries. From the list as at present constituted, the President of the Tribunal does not have a large pool from which to choose members of the arbitral tribunal. States Parties need to act promptly on the recommendation of the United Nations General Assembly to nominate arbitrators
in accordance with Annex VII to the Convention.F"
x. Relations with Others
1. The United Nations
The Tribunal was established by the Convention, adopted under the
auspices of the United Nations. Speaking on the occasion of the inauguration of the Tribunal on 18 October 1996, Dr. Boutros Boutros-Ghali,
the then Secretary-General of the United Nations, observed:
The Law of the Sea Tribunal will be part of the system for the
peaceful settlement of disputes as laid down by the founders of the
United Nations. Though not an Organ of the United Nations, the
Tribunal finds its origin in efforts sponsored by the United Nations.
As a sign of this excellent linkage a relationship agreement should
soon be signed between the Tribunal and the United Narions.t-?
The Agreement on Cooperation and Relationship between the United
Nations and the Tribunal (hereafter "the Relationship Agreement"),
which underlined the international personality of the Tribunal, was
signed on 18 December 1997 and approved by the Tribunal on 12
March 1998 at its fifth session and by the UN General Assembly on 8
September 1998. 428 It notes that the Convention established the Tribunal "as an autonomous international judicial body."429 The Agreement
426 SeeA/RES/56/12 of 28 November 2001.
427 For the text of this speech, see the Tribunal's Yearbook 1996-1997, Vol. 1,
16-17.
428 See A/RES/52/251 of 8 September 1998. Pursuant to article 14 of the
Agreement, the Agreement came to be applied provisionally as from 18
December 1997and entered into force on 8 September 1998. For the text of
the Agreement, seealso the Tribunal's Yearbook 1996-1997, Vol. 1, 176-182.
429 Seearticle 1 of the RelationshipAgreement.
Chandrasekhara Rao, ITLOS: The First SixYears
289
requires both parties to "establish cooperative working relations " pursuant to its provisions. It makes provision for, among other things, representation of the Tribunal as observer at meetings and conferences
convened under the auspices of the United Nations.P? exchange of information and documents.v! cooperation in administrative matters of
mutual interest,432 and use of the laissez-passer of the United Nations
by judges, the Registrar and entitled officials. 433 It requires both parties
to apply, as far as practicable, common personnel standards, methods
and arrangements designed to avoid serious discrepancies in terms and
conditions of employment.P" It further provides for cooperation in
budgetary and financial matters.P'' The Tribunal has agreed to conform,
as far as practicable and appropriate, to standard practices and forms
recommended by the United Nations in this regard. If requested by the
Tribunal, the United Nations may provide advice on financial and fiscal
questions of interest to the Tribunal with a view to achieving coordination and securing uniformity in such matters. Prior to this Agreement,
on 17 December 1996 the General Assembly decided to invite the Tri bunal to participate in the sessions and the work of the General Assembly in the capacity of observer.v"
The Tribunal has been applying mutatis mutandis the Financial
Regulations of the United Nations, following a decision to that effect
taken by the fourth Meeting of States Parties, pending the approval by
the Meeting of States Parties of the regulations for the financial management of the Tribunal.P? Having found that the conditions of service
430
431
432
433
434
435
436
Seethe Relationship Agreement, article 1.
Ibid., article 4.
Ibid., article 8.
Ibid., article 9.
Ibid., article 6.
Ibid., article 10.
A/RES/511204 of 17 December 1996. Acting upon this invitation, the
President of the Tribunal has been presenting reports on the activities of
the Tribunal to the General Assembly since its fifty-second session whenever the General Assembly has considered an agenda item on "oceans and
the law of the sea". For the text of the resolution, see also the Tribunal's
Yearbook 1996-1997, Vol. 1, 170.
437 SPLOS/8 of 10 April 1996,4. The Tribunal has prepared its own Financial
Regulations, based on the Financial Regulations of the United Nations,
which are awaiting the approval of the Meeting of States Parties. A Working Group constituted by the twelfth Meeting of States Parties completed
its work on the draft Financial Regulations and placed the matter before
290
Max Planck UNYB 6 (2002)
of staff members of the Tribunal conform to those of the United Nations Common System, the General Assembly admitted the Tribunal to
membership of the United Nations Joint Staff Pension Fund with effect
from 1 January 1997.438 The United Nations and the Tribunal also entered into a special agreement in February 1998, extending the jurisdiction of the Administrative Tribunal of the United Nations to the Tribunal with respect to applications by its staff members alleging nonobservance of the regulations of the United Nations Joint Staff Pension
Fund. 439 More recently, by an exchange of letters dated 26 May 2000
and 12 June 2001, the United Nations and the Tribunal entered into a
special agreement whereby the jurisdiction of the Administrative Tribunal of the United Nations has been extended to the staff members of
the Tribunal.
The Staff Regulations of the Tribunal, approved by the Tribunal on
8 October 1998, are largely modelled on the United Nations Staff
Regulations; where appropriate, the Staff Regulations of the ICJ were
also relied upon.r'? These Regulations are required to be compatible
with those of the United Nations to the extent required by the United
Nations Common System of Salaries, Allowances and Benefits. If the
UN Staff Regulations are amended in such a way as to affect the Common System, the Registrar is required to promulgate such amendments
to the Staff Regulations of the Tribunal as are required to ensure compatibility with that system, and such amendments apply provisionally
pending a decision of the 'Iribunal.r" The Staff Rules of the Tribunal,
drawn up to implement the Tribunal's Staff Regulations, entered into
full force and effect on 1 January 2001. Amendments made to the
United Nations Staff Rules are required to be incorporated in the Tribunal's Staff Rules , with a view to ensuring compatibility between the
438
439
440
441
the plenary of the twelfth meeting, which decided to take a formal decision
on the matter at its thirteenth Meeting.
A/RES/51/217 of 18 December 1996. See also the Agreement between the
United Nations Staff Pension Board and the Tribunal as to the conditions
governing the admission of the Tribunal to membership of the United Nations Joint StaffPension Fund, signedon 30June 1997.
This Agreement was signed by the Tribunal on 18 February 1998 and by
the United Nations on 25 February 1998. See also the Tribunal's Yearbook
1998,Vol. 2, 45-46.
For the text of the StaffRegulations, see the Tribunal's Yearbook 1998, Vol.
2,112-129.
Regulation 12.6.
Chandrasekhara Rao, ITLOS: The First Six Years
291
two in a manner consistent with the Tribunal's Staff Regulations.tv
Further, in applying the Staff Rules of the Tribunal, the Registrar is required to be guided by United Nations instructions, directives and
practice to the extent they are implementing Staff Rules of the Tribunal
similar to those provisions contained in the United Nations Staff
Rules.443
The establishment of trust funds with a view to providing financial
assistance to States for expenses incurred in connection with disputes
before international adjudicatory forums is not a new concept.r" In
particular, reference may be made here to the United Nations Secretary-General's Trust Fund to Assist States in the Settlement of Disputes
through the IC], established in 1989. Since it was felt that the absence of
a trust fund in respect of the Tribunal should not serve as an inhibiting
factor for States in making the choices under article 287 of the Convention, at its fifty-fifth session the General Assembly, by A/RES/55/7 of
30 October 2000, called upon the Secretary-General of the United Nations to establish a voluntary trust fund to assist States in the settlement
of disputes through the Tribunal and annexed the terms of reference of
the Trust Fund to its resolution.t'" The purpose of the Fund is to provide financial assistance to States Parties to the Convention for expenses
incurred in connection with cases submitted, or to be submitted, to the
Tribunal, including its Seabed Disputes Chamber and any other Chamber. The terms of reference declare that assistance "should only be provided in appropriate cases, principally those proceeding to the merits
where jurisdiction is not an issue, but in exceptional circumstances may
be provided for any phase of the proceedings . "446 Therefore, as a normal rule, assistance may be given in cases involving agreed references.
442
443
444
445
446
Rule 112.2 (bis).
Ibid .
See also D. Anderson, "Trust Funds in International Litigation", in: N .
Ando/ E. McWhinney/ R. Wolfrum (eds), Liber Amicorum Judge Shigeru
Oda, Vol. II, 2002, 793.
The terms of reference state that the Trust Fund is established by the Secretary-General of the United Nations "in accord ance with" A/RES/55/7 of
30 October 2000 and "pursuant to" the Agreement on Cooperation and
Relationship between the United Nations and the Tribunal. The constitution of this Fund was originally proposed by the United Kingdom at the
10th Mtg. of States Parties to the Convention. See SPLOS/60 of 22 June
2000,8.
See Annex I to A/RES/55/7 of 30 October 2000.
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States, intergovernmental organizations, national institutions, nongovernmental organizations, as well as natural and juridical persons, are
invited to make financial contributions to the Fund. The SecretaryGeneral will provide financial assistance from the Fund on the basis of
the recommendations of the panel of experts. The monies in the Fund
may be disbursed in order to defray the costs incurred in, among other
things, preparing the application and the written pleadings, counsel's
fees, travel and expenses of legal representation in Hamburg during the
various phases of a case and execution of a judgment, such as marking a
boundary in the territorial sea. The Division for Ocean Affairs and the
Law of the Sea of the Office of Legal Affairs of the United Nations is
the implementing office for this Fund and provides services for the operation of the Fund. As of 30 May 2002, the total amount in the Trust
Fund stood at US$ 24.865.447
It was the Secretary-General of the United Nations who was entrusted with the task of starting up the Tribunal. To that end, the
United Nations lent its staff to the Tribunal to assure it a successful
start. At the request of the judges, the Legal Counsel of the United Na tions chaired the meetings of the Tribunal from 1 October 1996 until
the Tribunal elected its President on 5 October 1996. On 18 October
1996, the then Secretary-General of the United Nations laid the foundation stone of the Tribunal's Headquarters building in Hamburg.
Later, on 3 July 2000, the Secretary-General of the United Nations was
present on the occasion of the official opening of the Headquarters
building.r'" The Division for Ocean Affairs and the Law of the Sea
made its website available to the Tribunal, pending the establishment of
the Tribunal's own website.r'? and this enabled the Tribunal to place on
the website of the United Nations, among other things, the records of
the Tribunal, the verbatim transcripts of the hearings in the cases before
it within hours of the close of each day's session, and the orders and
judgments of the Tribunal as soon as they are delivered. When required ,
space and other facilities in the United Nations Headquarters building
in New York are made available by the United Nations to the President, Registrar and other senior staff members of the Registry. Following the Relationship Agreement, it was agreed, on terms set out in let-
447
448
449
This amount represents the two contributions made by the Government of
the United Kingdom.
See the Tribunal's Yearbook 2000, Vol. 4, 15.
With effect from 9 November 2001, the Tribunal has its own website (see
footnote 231).
Chandrasekhara Rao, ITLOS : The First Six Years
293
ters exchanged in March 2002, that the Division for Ocean Affairs and
the Law of the Sea would provide all the administrative services of the
Tribunal required in New York.
In connection with its annual consideration of the item "Oceans and
the law of the sea", the General Assembly of the United Nations receives an annual report from the Secretary-General which contains a
section dealing with the Tribunal's activities in the period under review.
On the basis of this report and the statements of delegations made in
the plenary meetings, the General Assembly reviews the role of the Tribunal within the framework of the Convention and makes recommendations to States which are of direct interest to the Tribunal. For instance, in resolution A/RES/56/12 of 28 November 2001, the General
Assembly noted "the continued contribution" of the Tribunal to the
peaceful settlement of disputes in accordance with the Convention, underlined the Tribunal's "important role and authority concerning the
interpretation or application of the Convention" and encouraged States
Parties to the Convention to consider making a written declaration
choosing from the means set out in article 287 for the settlement of disputes concerning the interpretation or application of the Convention.
For the effective functioning of the Tribunal, it made an appeal to all
States Parties to the Convention to pay their assessed contributions to
the Tribunal in full and on time and to consider ratifying or acceding to
the Agreement on the Privileges and Immunities of the Tribunal; it invited States and other entities to make voluntary financial or other
contributions to the Tribunal's Trust Fund .450
2. Meetings of States Parties
The cooperation between the Tribunal and the United Nations can be
traced back mainly to the recommendations made by the annual Meetings of States Part ies to the Convention convened for dealing with,
among other things, matters concerning the organization and budget of
450
Reference may also be made to A/RES/52126 of 26 November 1997, in
which the United Nations General Assembly noted with appreciation the
adoption of the Agreement on the Privileges and Immunities of the Tribunal and also the adoption by the Tribunal of the Rules of the Tribunal, the
Resolution on the International Judicial Practice of the Tribunal and the
Guidelines concerning the Preparation and Presentation of Cases before
the Tribunal.
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the Tribunal. In relation to administrative, budgetary and financial
matters , and election of the members of the Tribunal, the Meeting of
States Parties (a standing body created by the Convention and financed
and serviced by the United Nations Secretariat) is to the Tribunal what
the General Assembly of the United Nations is to the ICJ.451 Among
the instruments adopted or approved by the Meetings of States Parties,
reference may be made in particular to the Agreement on the Privileges
and Immunities of the Tribunal,452 the Pension Scheme Regulations for
Members of the Tribunal 453 and a decision on the remuneration of
judges ad hOC. 454 In some cases, the Meetings of States Parties take note
of the documents submitted by the Tribunal.P''
3. The International Seabed Authority
Following an inquiry from the Authority, the Tribunal agreed, at its
meeting held on 30 June 1999, that the Staff Regulations of the Authority could provide for the President of the Tribunal, if so requested, to
appoint a panel of qualified persons, including judges of the Tribunal, to
constitute a tribunal to deal with proceedings instituted against staff
members of the Authority under article 168, para. 3 of the Convention.456
451
452
453
454
455
456
For the Rules of Procedure for Meetings of States Parties, see
SPLOS/2/Rev.3 of 26 July 1995.
On 23 May 1997, the 7th Mtg. of States Parties adopted the Agreement. In
accordance with the provisions of article 30(1) of the Agreement, the
Agreement entered into force on 30 December 2001. Article 31 of the
Agreement provides that a State which intends to ratify or accede to the
Agreement may at any time notify the depositary that it will apply the
Agreement provisionally for a period not exceeding two years. For the text
of the Agreement, see SPLOS/25 of 5 June 1997.
Approved by the 9th Mtg. of States Parties. For the text of the Pension
Scheme Regulations, see the Tribunal's Yearbook 1999, Vol. 3, 119-123.
This decision was approved at the 11th Mtg. of States Parties.
For example, the 9th Mtg. of States Parties took note of the Staff Regulations approved by the Tribunal on 8 October 1998.
See SPLOS/50 of 11 April 2000, 10.
Chandrasekhara Rao, ITLOS: The First Six Years
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4. The Host Country
The seat of the Tribunal is in the Free and Hanseatic City of Hamburg
in Germany.v? In keeping with international practice that has evolved
in connection with the provision of premises for United Nations bodies
by industrialized countries, Germany provided the Tribunal during its
start-up phase with temporary premises located in the centre of Hamburg and later, in November 2000, with permanent premises in the district of Nienstedten, Hamburg, on a site overlooking the river Elbe and
covering an area of 30.090 square metres.i'" The premises include a
modern building (constructed at a cost of € 63 million) with three
courtrooms, each room being equipped with modern courtroom technology, enabling the parties to make presentations which appear on
monitors in front of the judges, parties, witnesses and interpreters, as
well as enabling a video-link to witnesses unable to travel to Hamburg.
The premises are provided to the Tribunal free of rent.
Before the Tribunal moved into the new premises, the Agreement on
the Occupancy and Use of the Premises was signed by the Tribunal and
the Government of the Federal Republic of Germany on 18 October
2000. This Agreement establishes the terms and conditions under which
the premises are made available to the Tribunal.
However, the Headquarters Agreement (providing the Tribunal,
among other things, with the privileges and immunities to be accorded
in the host country) has not yet been concluded, although, as directed
by the fifth Meeting of States Parties, negotiations for this purpose have
been in progress as a matter of priority ever since the Tribunal was set
Up.459 The differences between the two sides arise mainly on account of
matters of taxation of income of Registry staff; the Tribunal wishes to
be treated on a par with similar international institutions in other
countries in this matter. Quite independently of this case, it appears that
there is much to be said in favour of coming to an understanding with a
457 See article 1 of the Statute.
458 The official opening of the headquarters buildingtook place on 3 July 2000
in the presence of several high dignitaries, including Mr. Kofi Annan, the
Secretary-General of the United Nations. However, the actual transfer of
the premises to the Tribunal took placeon 6 November 2000.
459 Pending the conclusion of this Agreement, the German Government
promulgated on 10 October 1996 the Ordinance on the Privileges and Immunities of the Tribunal. See the Tribunal's Yearbook 1996-1997, Vol. 1,
122.
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host country on a headquarters agreement before an international
agency is located in that country.
5. The International Court of Justice
There is no formal relationship between the Tribunal and the IC], except that under the Convention both constitute means for the settlement of disputes concerning its interpretation or application.f'? Under
the Agreement on Cooperation and Relationship between the United
Nations and the Tribunal, the Registrar of the Tribunal is required to
furnish to the United Nations, with the concurrence of the Tribunal
and subject to its Statute and Rules, any information relating to the Tribunal's work requested by the IC].461 The Secretary-General of the
United Nations is also required to transmit to the Tribunal copies of
any documents notified to the Secretary-General or otherwise communicated to the United Nations by the IC] pursuant to its Statute and
Rules of Court. 462 The IC] has sent all its publications to the Tribunal's
library "as a friendly gesture to a fellow judicial organ." In OctoberNovember 2001, the two organizations reached an agreement concerning the exchange of their respective publications.
6. The World Trade Organization
At a time when international judicial institutions are growing in number, the importance of promoting cooperation between them, especially
in information sharing, needs to be underlined. To that end, in February
2002 the Registry of the Tribunal and the Appellate Body Secretariat of
the World Trade Organization exchanged letters with a view to exchanging information on relevant legal and administrative matters,
subject to the requirements of confidentiality of each institution. A
similar arrangement was made in March 2002 between the Registry of
the Tribunal and the Legal Affairs Division of the WTO Secretariat.
460 See article 287 of the Convention.
461 See article 4 para. l(b)(iii)of the Agreement.
462 See article 4 para. l(a)(ii) of the Agreement.
Chandrasekhara Rao, ITLOS: The First Six Years
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7. The International Hydrographic Organization
In February 2002, the Registry of the Tribunal and the International
Hydrographic Organization exchanged letters whereby they agreed to
cooperate on matters of mutual concern, subject to the requirements of
confidentiality applicable to each institution. They agreed to have a
regular exchange of each other's documents. It was further agreed that
access to rHO nautical charts and chart data could be granted on a caseby-case basis, at the request of the Tribunal, and that expert advice and
assistance on specific matters falling within the scope of the Convention
could also be arranged.
8. The International Maritime Organization
Since September 1997, at the request of the then President of the Tribunal, the International Maritime Organization (IMO) has been sending
copies of its publications to the Tribunal as well as extending invitations
to attend the IMO meetings and conferences as an observer. Following
the entry into force of the Convention, the Secretary-General of the
IMO has informed the Tribunal that the IMO Council requested him to
maintain close cooperation with the United Nations with a view to ensuring coordinated approach to the implementation of the Convention
and that cooperation with the Tribunal has been considered as an extension of the cooperation with the United Nations. In his letter dated 13
June 2002, addressed to the Secretary-General of the IMO, the Registrar of the Tribunal proposed that cooperation take place at the level of
the Tribunal's Registry and the IMO Secretariat with the view to exchanging documents, publications and other information as well as expert advice and assistance on specific matters falling within the scope of
the Convention. By his letter dated 2 July 2002, the Secretary-General
of the IMO agreed to this proposal.
9. Other Bodies
The Tribunal is also engaged in efforts to establish working contacts
with international organizations whose activities in the area of the law
of the sea are of direct interest to the Tribunal (e.g., FAO, ILO and the
Intergovernmental Oceanographic Commission of UNESCO).
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XI. Public Relations
The Tribunal is the only international organization whose seat is in
Hamburg. The local contacts of the judges or Registry officials of the
Tribunal are mainly confined to social functions organized by the
authorities of the Free and Hanseatic City of Hamburg, the several consulates located in Hamburg, and organizations representing shipping,
insurance and commerce. The President and the Registrar of the Tribunal are also invited to important national functions organized by the
federal authorities in Berlin. Ambassadors of different countries posted
at Berlin and Bonn have also attended functions of the Tribunal, such as
its inauguration, the official opening of the headquarters building and,
more recently, the reception to mark the completion of the first five
years of the Tribunal's existence. H igh dignitaries of foreign governments also make occasional visits to the Tribunal.
The Tribunal makes efforts to cultivate relations with the public. On
9 March 2002, the Tribunal held an open day to give members of the
general public an opportunity to visit its new headquarters building and
to learn about the work of the Tribunal. More than three thousand four
hundred people visited the Tribunal's premises that day. Judges were
also present on that occasion. More such open days will be held in the
future . The information officer of the Tribunal organizes tours of the
building for interested groups. The general public is allowed to attend
the public sittings of the Tribunal. Information about the activities of
the Tribunal is conveyed to the public through brochures, press releases
and the Tribunal's website. The information officer is also available to
attend to enquiries from the press. The Registrar replies to enquiries received from States, international organizations and the public at large
concerning the work of the Tribunal. Subject to the requirements of
confidentiality, the Tribuna l promotes openness in its work.
XII. Concluding Comments
The success of an international judicial body is generally gauged by the
number of cases it has disposed of or has on its docket. This may not be
the correct yardstick to judge a court which has been in existence for no
more than a few years. It is perhaps natural for litigants - States, international organizations or other entities - to wait and see before they
entrust their cases to any new court. In the six years or so of its existence, the Tribunal has dealt with ten cases, most of which came to be
Chandrasekhara Rao, ITLOS: The First Six Years
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referred to it on account of its compulsory residual jurisdiction. This
record is not something from which the Tribunal may like to derive
comfort.
It is generally acknowledged that the Tribunal has dispelled a widely
shared belief that the disposal of cases in international judicial bodies is
a time-consuming process. It has built within a short period a reputation for the swift and efficient management of cases and thereby established a new trend in international adjudicat ion. If one looks at the
speed with which the Tribunal delivers its judgments and orders, it can
be seen that its size is no impediment. The Tribunal has made efforts to
address the underlying concerns of the parties. Commentators have also
noticed that the judges of the Tribunal have not adopted approaches
that have promoted the interests of one group of States or another. The
Tribunal has also developed its rules, regulations, interna l judicial practice and guidelines in consonance with the demands of current perceptions of international adjudication.
There is, however, the criticism that the judgments and orders of the
Tribunal are too brief and do not always explain the reasoning behind
its findings of fact and of law. It is a requirement of law that a judgment
or order should contain the reasons of law on which it is based. The
Tribunal is aware of this criticism and constantly endeavours to reason
out its conclusions as much as is practicable. It may be that more needs
to be done. A judgment or order should nevertheless be as succinct as
possible and eschew what is not necessary for the clarification of the
law and disposal of the case on its facts.
It has been stated that the Tribunal's judges are often divided in their
votes in respect of the key elements of its judgments and orders, creating the impression of a court not yet confident in its work. Is this criticism validly founded? It is not often noted that, of the nine cases dealt
with by the Tribunal, only in two cases were the judgments delivered
by narrow majorities; all others were decided either unanimously or by
a substantial majority. Of course declarations, separate opinions and
dissenting opinions have been appended in some cases, but there is
nothing abnormal in this. They are part of any vibrant judicial body
and help in making the judgments and orders transparent.
While the Tribunal's accomplishments in the course of the last six
years have not been insignificant, it is obvious that the Tribunal has not
been put to full use. The Tribunal will be able to live up to the expectations of the international community only when litigants make full use
of it. It may be recalled that from time to time the United Nations General Assembly has noted with satisfaction "the contribution of the Tri-
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bunal to the peaceful settlement of disputes in accordance with Part XV
of the Convention" and underlined "its important role and authority
concerning the interpretation or application of the Convention."